On February 12, 2010, the United States District Court for the Southern District of West Virginia entered an order denying a motion by Loadout, LLC and Coal River Mining, LLC (Loadout) to stay the Court's previous Order of November 24, 2009 related to the failure of the United States Corps of Engineers (Corps) to properly provide public notice pursuant to the Clean Water Act regarding certain coal permit applications filed by Loadout and Fola Coal Company (Fola Coal), concluding that Loadout failed to show sufficient economic harm as a result of being enjoined from further construction of the valley fills necessary for continued mining operations.
The Court's November 24, 2009 Order concluded that the Corps' procedural error effectively denied the plaintiffs' procedural due process rights i.e., a meaningful opportunity to comment upon and protest the permit applications filed by the companies. The Court directed the Corps to re-advertise and re-evaluate the applications, taking into account any new information submitted during the comment period. The Court also entered an injunction preventing the companies from undertaking further construction of the valley fills, pending the Corps' reconsideration of the permit applications.
On motion by Fola Coal, and without any opposition from the plaintiffs, the Court stayed the injunction as to the Fola Coal's valley fill operations. Fola Coal had submitted evidence of the significant economic effects the injunction would have upon not only Fola Coal and its employees, but also upon the county where the mine was located (the county's tax collections and its general population would suffer financially if the mine were shut down as a result of the injunction).
Subsequently, Loadout filed its motion for stay of the injunction, which the Court denied, noting that unlike Fola Coal, Loadout had failed to submit any evidence of the potential economic harm to the local community, and further, that the plaintiffs were opposed to Loadout's motion. The Court also noted that Loadout had not made any effort to ask the Corps to re-advertise or re-consider their permit applications.
In considering Loadout's motion, the Court weighed the following factors: (i) the significance of the harm that would be authorized under the requested stay; (ii) any procedural or other rights affected by the requested stay; (iii) the plaintiffs' opposition or lack thereof; and (iv) whether the company requesting the stay had provided a sufficient evidentiary basis in light of the specific facts pertinent to the permit at issue to conclude that the public interest warrants relief. In weighing such factors, the Court stated that it was attempting to achieve a balance between the importance of coal to West Virginia's economy and the value of preserving and protecting West Virginia's tremendous natural resources.
Robert D. Pollitt
Chase Tower - Eighth Floor
707 Virginia Street E.
Charleston, WV 25301
304-353-8137
robert.pollitt@steptoe-johnson.com
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