Memorandum Opinion and Order

Pending is the motion of Plaintiff West Virginia Highlands Conservancy (WVHC) for summary judgment and a permanent injunction on Count 9 of its Second Amended and Supplemental Complaint.  For reasons discussed below, the Court DENIES the motion without prejudice.  Plaintiff’s motion for summary judgment on approval by the Office of Surface Mining (OSM) of certain other state program amendments also pends.  That motion is GRANTED in part and DENIED in part.