KENTUCKIANS FOR the COMMONWEALTH, INCORPORATED, Plaintiff-Appellee,
v.
John RIVENBURGH, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District; Robert B. Flowers, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers; Ginger Mullins, Chief of the Regulatory Branch, Operations and Readiness Division, U.S. Army Corps of Engineers, Huntington District, Defendants-Appellants, and
Pocahontas Development Corporation; Horizon NR, LLC; Kentucky Coal Association, Intervenors/Defendants.
Interstate Mining Compact Commission; National Mining Association; Alabama Coal Association; Coal Operators and Associates, Incorporated; Indiana Coal Council; Ohio Coal Association; Pennsylvania Coal Association; Virginia Coal Association; West Virginia Coal Association; State of Virginia, Amici Curiae.
Kentuckians for the Commonwealth, Incorporated, Plaintiff-Appellee,
v.
John Rivenburgh, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District; Robert B. Flowers, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers; Ginger Mullins, Chief of the Regulatory Branch, Operations and Readiness Division, U.S. Army Corps of Engineers, Huntington District, Defendants.
Interstate Mining Compact Commission; National Mining Association; Alabama Coal Association; Coal Operators and Associates, Incorporated; Indiana Coal Council; Ohio Coal Association; Pennsylvania Coal Association; Virginia Coal Association; West Virginia Coal Association; State of Virginia, Amici Curiae.
United States Court of Appeals, Fourth Circuit.https://leagle.com/images/logo.png
Argued December 4, 2002.
Decided January 29, 2003.
Attorney(s) appearing for the Case
ARGUED: John Thompson Stahr, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Robert Gale McLusky, Jackson & Kelly, P.L.L.C., Charleston, West Virginia, for Appellants. James Millard Hecker, Trial Lawyers for Public Justice, Washington, D.C., for Appellee. ON BRIEF: Thomas L. Sansonetti, Assistant Attorney General, Ellen Durkee, Russell Young, Steve Rusak, Mark Nitczynski, Scott Williams, United States Department of Justice, Washington, D.C.; Lance D. Wood, Russell Petit, U.S. Army Corps of Engineers, Washington, D.C.; Steven M. Neugeboren, Office of General, Environmental Protection Agency, Washington, D.C.; Thomas A. Bovard, Office of the Solicitor, Department of the Interior, Washington, D.C., for Federal Appellants. Blair M. Gardner, Jackson & Kelly, P.L.L.C., Charleston, West Virginia; Michael R. Shebelski, Stephen M. Nickelsburg, Hunton & Williams, Richmond, Virginia; Timothy J. Hagerty, Amy D. Cubbage, Frost, Brown, Todd, L.L.C., Louisville, Kentucky; Richard J. Bolen, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, West Virginia; Robert D. Pollitt, Richard L. Lewis, Steptoe & Johnson, Charleston, West Virginia, for Appellants Pocahontas, et al. Joseph M. Lovett, Appalachian Center for the Economy and the Environment, Lewisburg, West Virginia; Joe F. Childers, Lexington, Kentucky, for Appellee. Christopher B. Power, Dinsmore & Shohl, L.L.P., Charleston, West Virginia; Gregory E. Conrad, Interstate Mining Compact Commission, Herndon, Virginia, for Amicus Curiae Commission. Harold P. Quinn, Jr., National Mining Association, Washington, D.C., for Amici Curiae Association, et al. Jerry W. Kilgore, Attorney General of Virginia, William H. Hurd, State Solicitor, Judith Williams Jagdmann, Deputy Attorney General, Maureen R. Matsen, Deputy State Solicitor, William E. Thro, Deputy State Solicitor, Roger L. Chaffe, Senior Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Amicus Curiae Commonwealth.
Before NIEMEYER, LUTTIG, and HAMILTON, Circuit Judges.
United States Court of Appeals, Fourth Circuit.
Reversed, vacated, and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge HAMILTON joined. Judge LUTTIG wrote an opinion concurring in part and dissenting in part.
NIEMEYER, Circuit Judge.
This appeal presents the issue of whether the U.S. Army Corps of Engineers has authority under the Clean Water Act and under its now-superseded 1977 regulation implementing the Act to issue permits for...
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