BRAGG v. WEST VIRGINIA COAL ASSOC.

Nos. 99-2443, 99-2445, 99-2448, 99-2683, 00-1338, 00-1339.

248 F.3d 275 (2001)

Patricia Bragg; James W. Weekley; Sibby R. Weekley; West Virginia Highlands Conservancy; Carlos Gore; Linda Gore; Cheryl Price; Jerry Methena, Plaintiffs-Appellees, and Tommy Moore; Victoria Moore, Plaintiffs, v. West Virginia Coal Association; West Virginia Mining and Reclamation Association, Intervenors/Defendants-Appellants, and Dana Robertson, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District; Joe N. Ballard, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers; Michael D. Gheen, Chief to the Regulatory Branch, Operations and Readiness Division, U.S. Army Corps of Engineers, Huntington District; Michael C. Castle, Director, West Virginia Division of Environmental Protection, Defendants, and Hobet Mining, Incorporated; Catenary Coal Company; Mingo-Logan Coal Company; Western Pocahontas Properties Limited Partnership; National Council of Coal Lessors, Incorporated; International Union, United Mine Workers of America, Intervenors/Defendants. National Mining Association; Aei Resources, Inc.; Washington Legal Foundation; Allied Educational Foundation; Interstate Mining Compact Commission; Commonwealth of Virginia; Friends of the Earth; Kentucky Resources Council, Inc., Amici Curiae. Patricia Bragg; James W. Weekley; Sibby R. Weekley; West Virginia Highlands Conservancy; Carlos Gore; Linda Gore; Cheryl Price; Jerry Methena, Plaintiffs-Appellees, and Tommy Moore; Victoria Moore, Plaintiffs, v. Western Pocahontas Properties Limited Partnership; National Council of Coal Lessors, Incorporated, Intervenors/Defendants-Appellants, and Dana Robertson, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District; Joe N. Ballard, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers; Michael D. Gheen, Chief of the Regulatory Branch, Operations and Readiness Division, U.S. Army Corps of Engineers, Huntington District; Michael C. Castle, Director, West Virginia Division of Environmental Protection, Defendants, and West Virginia Coal Association; West Virginia Mining and Reclamation Association; Hobet Mining, Incorporated; Catenary Coal Company; Mingo-Logan Coal Company; International Union, United Mine Workers of America, Intervenors/Defendants. National Mining Association; Aei Resources, Inc.; Washington Legal Foundation; Allied Educational Foundation; Interstate Mining Compact Commission; Commonwealth of Virginia; Friends of the Earth; Kentucky Resources Council, Inc., Amici Curiae. Patricia Bragg; James W. Weekley; Sibby R. Weekley; West Virginia Highlands Conservancy; Carlos Gore; Linda Gore; Cheryl Price; Jerry Methena, Plaintiffs-Appellees, and Tommy Moore; Victoria Moore, Plaintiffs, v. Michael C. Castle, Director, West Virginia Division of Environmental Protection, Defendant-Appellant, and Dana Robertson, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District; Joe N. Ballard, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers; Michael D. Gheen, Chief of the Regulatory Branch, Operations and Readiness Division, U.S. Army Corps of Engineers, Huntington District, Defendants, and West Virginia Coal Association; West Virginia Mining and Reclamation Association; Hobet Mining, Incorporated; Catenary Coal Company; Mingo-Logan Coal Company; Western Pocahontas Properties Limited Partnership; National Council of Coal Lessors, Incorporated; International Union, United Mine Workers of America, Intervenors/Defendants. National Mining Association; Aei Resources, Inc.; Washington Legal Foundation; Allied Educational Foundation; Interstate Mining Compact Commission; Commonwealth of Virginia; Friends of the Earth; Kentucky Resources Council, Inc., Amici Curiae. Patricia Bragg; James W. Weekley; Sibby R. Weekley; West Virginia Highlands Conservancy; Carlos Gore; Linda Gore; Cheryl Price; Jerry Methena, Plaintiffs-Appellees, and Tommy Moore; Victoria Moore, Plaintiffs, v. International Union, United Mine Workers of America, Intervenor/Defendant-Appellant, and Dana Robertson, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District; Joe N. Ballard, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers; Michael D. Gheen, Chief of the Regulatory Branch, Operations and Readiness Division, U.S. Army Corps of Engineers, Huntington District; Michael C. Castle, Director, West Virginia Division of Environmental Protection, Defendants, and West Virginia Coal Association; West Virginia Mining and Reclamation Association; Hobet Mining, Incorporated; Catenary Coal Company; Mingo-Logan Coal Company; Western Pocahontas Properties Limited Partnership; National Council of Coal Lessors, Incorporated, Intervenors/Defendants. National Mining Association; Aei Resources, Inc.; Washington Legal Foundation; Allied Educational Foundation; Interstate Mining Compact Commission; Commonwealth of Virginia; Friends of the Earth; Kentucky Resources Council, Inc., Amici Curiae. Patricia Bragg; James W. Weekley; Sibby R. Weekley; West Virginia Highlands Conservancy; Carlos Gore; Linda Gore; Cheryl Price; Jerry Methena, Plaintiffs-Appellees, and Tommy Moore; Victoria Moore, Plaintiffs, v. Hobet Mining, Incorporated; Catenary Coal Company; MingoLogan Coal Company, Intervenors/Defendants-Appellants, and Dana Robertson, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District; Joe N. Ballard, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers; Michael D. Gheen, Chief of the Regulatory Branch, Operations and Readiness Division, U.S. Army Corps of Engineers, Huntington District; Michael C. Castle, Director, West Virginia Division of Environmental Protection, Defendants, and West Virginia Coal Association; West Virginia Mining and Reclamation Association; Western Pocahontas Properties Limited Partnership; National Council of Coal Lessors, Incorporated; International Union, United Mine Workers of America, Intervenors/Defendants. National Mining Association; Aei Resources, Inc.; Washington Legal Foundation; Allied Educational Foundation; Interstate Mining Compact Commission; Commonwealth of Virginia; Friends of the Earth; Kentucky Resources Council, Inc., Amici Curiae. Patricia Bragg; James W. Weekley; Sibby R. Weekley; West Virginia Highlands Conservancy; Carlos Gore; Linda Gore; Cheryl Price; Jerry Methena, Plaintiffs-Appellees, and Tommy Moore; Victoria Moore, Plaintiffs, v. Dana Robertson, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District; Joe N. Ballard, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers; Michael D. Gheen, Chief of the Regulatory Branch, Operations and Readiness Division, U.S. Army Corps of Engineers, Huntington District, Defendants-Appellants, and Michael C. Castle, Director, West Virginia Division of Environmental Protection, Defendant, and West Virginia Coal Association; West Virginia Mining and Reclamation Association; Hobet Mining, Incorporated; Catenary Coal Company; Mingo-Logan Coal Company; Western Pocahontas Properties Limited Partnership; National Council of Coal Lessors, Incorporated; International Union, United Mine Workers of America, Intervenors/Defendants. National Mining Association; Aei Resources, Inc.; Washington Legal Foundation; Allied Educational Foundation; Interstate Mining Compact Commission; Commonwealth of Virginia; Friends of the Earth; Kentucky Resources Council, Inc., Amici Curiae. Patricia Bragg; James W. Weekley; Sibby R. Weekley; West Virginia Highlands Conservancy; Carlos Gore; Linda Gore; Cheryl Price; Jerry Methena, Plaintiffs-Appellees, and Tommy Moore; Victoria Moore, Plaintiffs, v. West Virginia Coal Association; West Virginia Mining and Reclamation Association, Intervenors/Defendants-Appellants, v. Michael C. Castle, Director, West Virginia Division of Environmental Protection, Defendant-Appellee, and Dana Robertson, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District; Joe N. Ballard, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers; Michael D. Gheen, Chief of the Regulatory Branch, Operations and Readiness Division, U.S. Army Corps of Engineers, Huntington District, Defendants, and Hobet Mining, Incorporated; Catenary Coal Company; Mingologan Coal Company; Western Pocahontas Properties Limited Partnership; National Council of Coal Lessors, Incorporated; International Union, United Mine Workers of America, Intervenors/Defendants. National Mining Association; Aei Resources, Inc.; Washington Legal Foundation; Allied Educational Foundation; Interstate Mining Compact Commission; Commonwealth of Virginia; Friends of the Earth; Kentucky Resources Council, Inc., Amici Curiae. Patricia Bragg; James W. Weekley; Sibby R. Weekley; West Virginia Highlands Conservancy; Carlos Gore; Linda Gore; Cheryl Price; Jerry Methena, Plaintiffs-Appellees, and Tommy Moore; Victoria Moore, Plaintiffs, v. Hobet Mining, Incorporated; Catenary Coal Company; Mingologan Coal Company, Intervenors/Defendants-Appellants, v. Michael C. Castle, Director, West Virginia Division of Environmental Protection, Defendant-Appellee, and Dana Robertson, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District; Joe N. Ballard, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers; Michael D. Gheen, Chief of the Regulatory Branch, Operations and Readiness Division, U.S. Army Corps of Engineers, Huntington District, Defendants, and West Virginia Coal Association; West Virginia Mining and Reclamation Association; Western Pocahontas Properties Limited Partnership; National Council of Coal Lessors, Incorporated; International Union, United Mine Workers of America, Intervenors/Defendants. National Mining Association; Aei Resources, Inc.; Washington Legal Foundation; Allied Educational Foundation; Interstate Mining Compact Commission; Commonwealth of Virginia; Friends of the Earth; Kentucky Resources Council, Inc., Amici Curiae.

United States Court of Appeals, Fourth Circuit.

Decided: April 24, 2001.

Amended Opinion Filed: May 1, 2001.

Amended Opinion Filed: May 9, 2001.


Attorney(s) appearing for the Case

ARGUED: Benjamin Lee Bailey, BAILEY & GLASSER, L.L.P., Charleston, West Virginia; R. Hewitt Pate, HUNTON & WILLIAMS, Richmond, Virginia; Jared A. Goldstein, Environment & Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants.

Joseph Mark Lovett, MOUNTAIN STATE JUSTICE, INC., Charleston, West Virginia; James Millard Hecker, TRIAL LAWYERS FOR PUBLIC JUSTICE, Washington, D.C., for Appellees.

ON BRIEF: Brian A. Glasser, Jennifer S. Fahey, BAILEY & GLASSER, L.L.P., Charleston, West Virginia; Russell M. Hunter, Office of Mining & Reclamation, WEST VIRGINIA DIVISION OF ENVIRONMENT PROTECTION, Nitro, West Virginia, for Plaintiff-Appellant Castle. Michael R. Shebelskie, HUNTON & WILLIAMS, Richmond, Virginia; W. Warren Upton, James R. Snyder, Robert G. McLusky, JACKSON & KELLY, P.L.L.C., Charleston, West Virginia; Jim Haviland, Perry McDaniel, CRANDALL, PYLES, HAVILAND & TURNER, Charleston, West Virginia; Robert D. Pollitt, STEPTOE & JOHNSON, Charleston, West Virginia, for Intervenors-Defendants-Appellants West Virginia Coal, et al. Lois J. Schiffer, Assistant Attorney General, Steven E. Rusak, David C. Shilton, Environment & Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, DC.; Gary S. Guzy, General, Counsel, Steven Neugeboren, ENVIRONMENTAL PROTECTION AGENCY, Washington, D.C.; John D. Leshy, Solicitor, Thomas Bovard, DEPARTMENT OF THE INTERIOR, Washington, D.C.; Charles A. Blanchard, General Counsel, Earl Stockdale, Deputy General Counsel, Diedre Duncan, DEPARTMENT OF THE ARMY, Washington, D.C., for Federal Appellants. Patrick C. McGinley, Morgantown, West Virginia; Suzanne M. Weise, Morgantown, West Virginia, for Appellees.

Harold P. Quinn, Jr., Senior Vice President & General Counsel, NATIONAL MINING ASSOCIATION, Washington, D.C.; George W. Miller, John G. Roberts, Jr., Susan M. Cook, HOGAN & HARTSON, L.L.P., Washington, D.C., for Amicus Curiae National Mining. Sheryl G. Snyder, Timothy J. Hagerty, BROWN, TODD & HEYBURN, P.L.L.C., Louisville, Kentucky; Paul E. Sullivan, BROWN, TODD & HEYBURN, P.L.L.C., Lexington, Kentucky, for Amicus Curiae AEI. Daniel J. Popeo, Paul D. Kamenar, WASHINGTON LEGAL FOUNDATION, Washington, D.C., for Amici Curiae Washington Legal, et al. Christopher B. Power, David L. Yaussy, ROBINSON & McELWEE, L.L.P., Charleston, West Virginia; Gregory E. Conrad, INTERSTATE MINING COMPACT COMMISSION, Herndon, Virginia, for Amicus Curiae Interstate Mining. Mark L. Earley, Attorney General of Virginia, William H. Hurd, Solicitor General, Judith Williams Jagdmann, Deputy Attorney General, Richard B. Zorn, Senior Assistant Attorney General, Valerie L. Myers, Assistant Attorney General, John C. Wilkinson, Jr., Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Amicus Curiae Commonwealth. David S. Baron, EARTH JUSTICE LEGAL DEFENSE FUND, Washington, D.C., for Amicus Curiae Friends. Tom FitzGerald, Frankfort, Kentucky, for Amicus Curiae Kentucky Resources.

Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.


Affirmed in part, vacated in part, and remanded with instructions by published opinion. Judge Niemeyer wrote the opinion, in which Judge Luttig and Judge Williams joined.

OPINION

NIEMEYER, Circuit Judge:

This case, which is of great importance to the citizens of West Virginia, was commenced by some of its citizens and an environmental group against the Director of the West Virginia Division of Environmental Protection to challenge his issuance of...

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