Coal Group Expresses Concern Over Impact Of Burr Oak Lawsuit

By
Steve Robb - Athens Messenger staff reporter

Dateline
Updated Mon, Jul 8, 2013 9:42 am

A coal industry group is asking a federal judge to allow it to get involved in a lawsuit related to the mining of coal beneath Burr Oak State Park.

The Ohio Coal Association claims there would be “disastrous results” for coal mining in Ohio and across the country if the U.S. Army Corps of Engineers prevails in a lawsuit the Corps filed in 2011 against the state of Ohio and Buckingham Coal Co.

The lawsuit was sparked by the state’s decision to lease coal rights beneath Burr Oak State Park so that Buckingham could mine a corridor beneath the park to connect the company’s coal reserves on opposite sides of the park. In exchange, Buckingham paid the state more than $400,000 in royalties for the coal it took from the corridor and gave the state some coal rights it owned closer to Burr Oak Lake.

The Corps of Engineers is involved because it constructed and maintains Tom Jenkins Dam at Burr Oak Lake as a flood control project. The Corps asserts that the state did not have the authority to lease the coal rights to Buckingham for the corridor, and tried unsuccessfully to get the federal judge to prevent mining of the corridor (now completed) while the lawsuit is pending.

Although the federal judge has not yet granted the Ohio Coal Association permission to file a “friend of the court” brief, a copy of the brief was attached to the association’s request.

The request was prompted by the Corps now arguing that the state violated the Flood Control Acts of 1936 and 1944 in leasing the coal rights to Buckingham.

The Corps argues in court documents that leasing the coal rights “violated the 1936 Act (amended in 1944) by putting reservoir land to an unauthorized use, one that is not consistent with federal uses and purposes of flood control and conservation.”

Land for the project was purchased by the federal government. The feds later deeded the land and coal interests to the state of Ohio in 1962. The deeds do not specifically prohibit coal mining.

“Congress never intended project land to be used by Ohio for commercial coal extraction to Ohio’s profit,” the Corps argues in court documents. “Project lands were acquired for, and were to be retained for, flood control and other specified purposes.”

The Corps’ argument that coal mining is not consistent with the federal uses and purposes of flood control is what has the Ohio Coal Association wanting to file a brief.

Although the Corps is making the argument specifically about the Burr Oak situation, the association is claiming it has wider implications.

“The United States of America has asserted the novel and unheard of proposition that two federal statutory provisions, the Flood Control Acts of 1936 and 1944, would now prohibit the mining of coal in large swaths of land across the country,” the coal group asserts in its proposed brief.

The association does not make legal arguments, but rather describes what it claims would be the impact if the Corps succeeds.

“The new statutory interpretation used by the United States would jeopardize potential and ongoing underground mining operations across the state, threatening Ohio’s crucial supply of in-state coal,” the association asserts. “This would particularly affect communities in Southeastern Ohio, an area that can least afford it.”

If it gets permission to file the brief, the association will ask the federal court to grant summary judgment in favor of the state of Ohio and Buckingham Coal, and to reject the Corps’ argument that the Flood Control Acts prohibit coal mining on certain project lands.

Both Buckingham and the state of Ohio have filed motions for summary judgment, asking the court to rule in their favor in the lawsuit. They argue, in part, that the Flood Control Acts of 1936 and 1944 do not prohibit the mining of coal. Both cite instances in which the Corps approved underground coal mining at flood control projects at other locations.

“The United States attempts to torture those statutes to be interpreted to invalidate a lawful enactment of the Ohio General Assembly which authorized ODNR to lease the coal rights it held (at Burr Oak),” the state argues in its motion for summary judgment.

The Corps also has a motion for partial summary judgment pending in the lawsuit.

 

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