Memorandum Opinion and Order

This case involves several environmental groups’ challenge to the Army Corps of Engineers’ (“Corps”) decision to issue a nationwide permit, NWP 21, authorizing the discharge of dredged and fill material associated with surface coal mining activities, which includes mountaintop mining. Under this controversial method of mining, coal seams running through the upper fraction of a mountain, ridge, or hill are reached by blasting and removing each layer of rock above the seam. The mountain is demolished layer by layer as each layer of rock and coal is removed until the cost of proceeding exceeds the value of the remaining coal.  During this process, the removed rock is placed in adjacent valleys and, once the coal is extracted, replaced in an attempt to recreate the contour of the mountain. See Bragg v. W. Va. Coal Assoc., 248 F.3d 275, 286 (4th Cir. 2001).  This dirt and rock, called overburden or spoil, “swells” or increases in size by as much as 25%, creating excess material not needed to rebuild the mountain.  Id.  As Judge Haden explained, “[t]he overburden . . . is disposed of by creating valley fills, that is, literally, filling the valleys with waste rock and dirt.” Kentuckians for the Commonwealth, Inc. v. Rivenburgh (“Rivenburgh I”), 204 F. Supp. 2d 927, 92930 (S.D. W. Va. 2002).  These valley fills permanently eliminate previously existing valley streams. In the past twenty years, thousands of miles of streams in Appalachia, constituting over 2% of the streams in the area, have been impacted by the discharges associated with mountaintop mining. Draft Programmatic Environmental Impact Statement at III.D-2 (2003) (“DPEIS”).  In West Virginia alone, over 200 miles of streams have been permanently lost.  DPEIS at III.K-49.

Memorandum Opinion and Order

Pending before the Court are Plaintiff Pinnacle Mining Company, LLC’s Motion for Preliminary Injunction [Docket 8], Defendants Bluestone Coal Corporation (Bluestone), Bluestone Industries, Inc., and Double-Bonus Coal Company’s Motion to Dismiss [Docket 16], and Defendants’ Request to Present Oral Argument [Docket 21].  The motions have been fully briefed and are ripe for the Court’s review.

Order

Pending before the court is Class Counsel’s Motion for Award of Attorney Fees and Reimbursement of Expenses [Docket 180].  Class Counsel1 seeks a fee award equivalent to 25% of the Settlement Fund of approximately $50 million.  Class Counsel also seeks $91,883.50 for out-of-pocket expenses and a $25,000 incentive award for each named Class Representative.

Amended Memorandum Opinion and Order¹

Pending before the Court are Plaintiff West Virginians for Life’s (WVFL) Motion for Preliminary Injunction2 [Docket 112], Plaintiff Center for Individual Freedom, Inc.’s (CFIF) Emergency Second Motion for Preliminary Injunction [Docket 90], Intervenor Defendant Margaret L. Workman’s Motion to Dismiss [Docket 99], Defendant Betty Ireland’s Motion to Dismiss [Docket 103] and Motion to Strike [Docket 105], and WVFL’s Motion for Reconsideration [Docket 106].  The Court will address each motion in turn.