OHIO VALLEY ENVIRONMENTAL COALITION; Coal River Mountain Watch; West Virginia Highlands Conservancy, Plaintiffs-Appellees, and
Coal Mac, Incorporated, Movant,
v.
ARACOMA COAL COMPANY; Elk Run Coal Company; Alex Energy, Incorporated; Independence Coal Company, Incorporated, Intervenors/Defendants-Appellants, and
Mingo Logan Coal Company, Intervenor/Defendant, and
United States Army Corps of Engineers; Lieutenant General Robert L. Van Antwerp, Commander and Chief of Engineers, U.S. Army Corps of Engineers; Colonel Dana R. Hurst, District Engineer, United States Army Corps of Engineers, Huntington District; West Virginia Coal Association, Defendants.
National Mining Association; Kentucky Coal Association; Coal Operators and Associates, Inc.; Illinois Coal Association; Colorado Mining Association; Alaska Miners Association; Virginia Coal Association; Idaho Mining Association; Alabama Coal Association; Pennsylvania Coal Association; Ohio Coal Association; Indiana Coal Council, Inc.; Utility Water Act Group; West Virginia Department of Commerce; West Virginia Department of Environmental Protection, Amici Supporting Appellants.
Ohio Valley Environmental Coalition; Coal River Mountain Watch; West Virginia Highlands Conservancy, Plaintiffs-Appellees, and
Coal Mac, Incorporated; Frasure Creek Mining, LLC, Movants,
v.
United States Army Corps of Engineers; Lieutenant General Robert L. Van Antwerp, Commander and Chief of Engineers, U.S. Army Corps of Engineers; Colonel Dana R. Hurst, District Engineer, United States Army Corps of Engineers, Huntington District, Defendants-Appellants, and
West Virginia Coal Association, Defendant, and
Aracoma Coal Company; Elk Run Coal Company; Alex Energy, Incorporated; Independence Coal Company, Incorporated; Mingo Logan Coal Company, Intervenors/Defendants.
National Mining Association; Kentucky Coal Association; Coal Operators and Associates, Inc.; Illinois Coal Association; Colorado Mining Association; Alaska Miners Association; Virginia Coal Association; Idaho Mining Association; Alabama Coal Association; Pennsylvania Coal Association; Ohio Coal Association; Indiana Coal Council, Inc.; Utility Water Act Group; West Virginia Department of Commerce; West Virginia Department of Environmental Protection, Amici Supporting Appellants.
Ohio Valley Environmental Coalition; Coal River Mountain Watch; West Virginia Highlands Conservancy, Plaintiffs-Appellees, and
Coal Mac, Incorporated; Frasure Creek Mining, LLC, Movants,
v.
West Virginia Coal Association, Defendant-Appellant, and
United States Army Corps of Engineers; Lieutenant General Robert L. Van Antwerp, Commander and Chief of Engineers, U.S. Army Corps of Engineers; Colonel Dana R. Hurst, District Engineer, United States Army Corps of Engineers, Huntington District, Defendants, and
Aracoma Coal Company; Elk Run Coal Company; Alex Energy, Incorporated; Independence Coal Company, Incorporated; Mingo Logan Coal Company, Intervenors/Defendants.
Ohio Valley Environmental Coalition; Coal River Mountain Watch; West Virginia Highlands Conservancy, Plaintiffs-Appellees,
v.
United States Army Corps of Engineers; Carl A. Strock, Commander and Chief of Engineers, U.S. Army Corps of Engineers; William Bulen, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District; West Virginia Coal Association, Defendants, and
Coal Mac, Incorporated; Mingo Logan Coal Company; Frasure Creek Mining, LLC; Jupiter Holdings LLC, Intervenors/Defendants, and
Aracoma Coal Company; Elk Run Coal Company; Alex Energy, Incorporated; Independence Coal Company, Incorporated, Intervenors/Defendants-Appellants.
Ohio Valley Environmental Coalition; Coal River Mountain Watch; West Virginia Highlands Conservancy, Plaintiffs-Appellees,
v.
United States Army Corps of Engineers; Robert L. Van Antwerp, Commander and Chief of Engineers, U.S. Army Corps of Engineers; Dana R. Hurst, District Engineer, United States Army Corps of Engineers, Huntington District, Defendants-Appellants, and
West Virginia Coal Association, Defendant, and
Aracoma Coal Company; Elk Run Coal Company; Alex Energy, Incorporated; Independence Coal Company, Incorporated; Mingo Logan Coal Company; Coal Mac, Incorporated; Frasure Creek Mining, LLC; Jupiter Holdings LLC, Intervenor/Defendant.
Alabama Coal Association; Alaska Miners Association; Coal Operators and Associates, Incorporated; Colorado Mining Association; Idaho Mining Association; Illinois Coal Association; Indiana Coal Council; Kentucky Coal Association; National Mining Association; Ohio Coal Association; Pennsylvania Coal Association; Utility Water Act Group; Virginia Coal Association; West Virginia Department of Commerce; West Virginia Department of Environmental Protection, Amici Supporting Appellants.
United States Court of Appeals, Fourth Circuit.https://leagle.com/images/logo.png
Argued: September 23, 2008.
Decided: February 13, 2009.
Attorney(s) appearing for the Case
ARGUED: Robert G. McLusky, Jackson Kelly, P.L.L.C., Charleston, West Virginia; Michael Thomas Gray, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Appellants. Joseph Mark Lovett, Appalachian Center for the Economy & The Environment, Lewisburg, West Virginia, for Appellees. ON BRIEF: James R. Snyder, Blair M. Gardner, Jackson Kelly, P.L.L.C., Charleston, West Virginia; Michael R. Shebelskie, William H. Wright, Jr., Hunton & Williams, L.L.P., Richmond, Virginia, for Intervenors/Appellants Aracoma Coal Company, Elk Run Coal Company, Alex Energy, Incorporated, Independence Coal Company, Incorporated; James S. Crockett, Jr., Allyn G. Turner, James C. Lesnett, Jr., Spilman Thomas & Battle, P.L.L.C., Charleston, West Virginia, for Appellant West Virginia Coal Association. Ronald J. Tenpas, Acting Assistant Attorney General, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Appellants United States Army Corps of Engineers, Robert L. Van Antwerp, Commander and Chief of Engineers, U.S. Army Corps of Engineers, Dana R. Hurst, District Engineer, United States Army Corps of Engineers, Huntington District. James M. Hecker, Public Justice, Washington, D.C.; Stephen E. Roady, Jennifer C. Chavez, Earthjustice, Washington, D.C., for Appellees Ohio Valley Environmental Coalition, Coal River Mountain Watch, West Virginia Highlands Conservancy. Harold P. Quinn, Jr., Karen Bennett, National Mining Association, Washington, D.C.; Christopher T. Handman, Dominic F. Perella, Hogan & Hartson, L.L.P., Washington, D.C., for Alabama Coal Association, Alaska Miners Association, Coal Operators and Associates, Incorporated, Colorado Mining Association, Idaho Mining Association, Illinois Coal Association, Indiana Coal Council, Kentucky Coal Association, National Mining Association, Ohio Coal Association, Pennsylvania Coal Association, Virginia Coal Association, Amici Supporting Appellants. James N. Christman, Brooks M. Smith, Hunton & Williams, L.L.P., Richmond, Virginia; Kristy A.N. Bulleit, Hunton & Williams, L.L.P., Washington, D.C., for Utility Water Act Group, Amicus Supporting Appellants. William R. Valentino, Assistant Attorney General, West Virginia Attorney General's Office, Charleston, West Virginia; Thomas L. Clarke, Senior Counsel, West Virginia Department of Environmental Protection, Office of Legal Services, Charleston, West Virginia, for West Virginia Department of Commerce and West Virginia Department of Environmental Protection, Amici Supporting Appellants.
Reversed, vacated and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge SHEDD joined. Judge MICHAEL wrote a separate opinion dissenting in part and concurring in part.
United States Court of Appeals, Fourth Circuit.
GREGORY, Circuit Judge:
OPINION
This appeal concerns a challenge by Plaintiffs-Appellees Ohio Valley Environmental Coalition, the Coal River Mountain Watch, and the West Virginia Highlands Conservancy (hereinafter referred to collectively as "OVEC") to the U.S. Army Corps of Engineers ("Corps") issuance of four permits allowing the filling of West Virginia stream waters in conjunction with area surface coal mining...
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