Buckingham Coal, Corps duke it out over Ohio coal mining plan

Calling the claims in an amended complaint by the U.S. Army Corps of Engineers “frivolous,” Ohio coal producer Buckingham Coal on July 9 asked a federal court for sanctions to be imposed against the Corps.

The Corps lawsuit, filed against Buckingham Coal in May 2011 at the U.S. District Court for the Southern District of Ohio, is over a company effort to mine coal reserves in Ohio that the Corps said would be a danger to nearby water resources at the Burr Oak Reservoir, which is within Corps jurisdiction.

“The Amended Complaint (ECF No. 42) is the latest iteration of a baseless attempt by the United States to prevent the mining of coal that the State of Ohio owns on premises that the State of Ohio owns and has leased to Buckingham,” said the July 9 company protest. “In heedless pursuit of this unauthorized goal, the United States (on behalf of the Army Corps of Engineers (the ‘Corps’)) has ignored the plainly apparent facts and clear legal standards and asserted a series of frivolous claims, shifting positions when one claim after another has been exposed as devoid of any basis in fact nor law.”

The latest arguments raised by the U.S. are that:

  • Buckingham’s mining activities are prohibited by the terms of a contractual agreement between the U.S. and the State of Ohio; and
  • the 1936 and 1944 Flood Control Acts contain a blanket prohibition of mining at Corps flood control projects.

“These arguments lack any basis in law or fact,” Buckingham said. “First, as the Court already has preliminarily but unequivocally ruled in denying the United States’ application for a temporary restraining order, there is no contractual prohibition on mining. The United States has submitted no material new factual or legal support for its contract argument. Second, the plain language of the flood control acts and the documents produced in discovery demonstrate that there is no basis to assert a statutory prohibition of mining activity. There is no such restriction in the plain language or supporting text of the statutes, and the Corps’ own documents demonstrate a long history of mining on flood control projects throughout the country.”

Buckingham said it is entitled to sanctions in the form of the costs and fees that it has incurred in responding to the Amended Complaint.

Buckingham says Corps eventually failed to get MSHA to rescind approval

The U.S. and the Corps have asserted one theory after another in an attempt to prevent Buckingham’s mining activities on lands leased by the State of Ohio, the company said.

First, the Corps “covertly” approached the U.S. Mine Safety and Health Administration (MSHA) and asked that agency to revoke a permit that was properly issued to Buckingham under MSHA’s standards, claiming that Buckingham’s underground mining corridor would threaten the integrity of the reservoir. The Corps misrepresented to MSHA that the State of Ohio had rescinded its mining permits to Buckingham, said the company, adding that when MSHA learned that the state had taken no such action, it reissued a permit.

“Despite the efforts to delay, MSHA and the State of Ohio ultimately determined that the Corps’ objections were unfounded, and Buckingham was entitled to proceed by all permitting authorities,” Buckingham said.

Next, the U.S. moved the court for a temporary restraining order on the basis that the proposed mining activity violated contractual agreements between the United States andState of Ohio, and posed a threat to the integrity of the Tom Jenkins Dam and Burr Oak Reservoir. The court summarily rejected both arguments.

The U.S. then filed an Amended Complaint, shifting theories once again, asserting for the first time a statutory prohibition of Buckingham’s mining activity based on the 1936 and 1944 Flood Control Acts, Buckingham said. The United States asserted this claim inaddition to restating its contract claim. The U.S. then moved for partial summary judgment on Count I (the contract claim) and Count II (the statutory claim), before any discovery could be obtained by defendants.

“With respect to the contract claim, the United States has simply rehashed the same argument that the Court rejected following the TRO hearing,” Buckingham said. “The United States purports to offer additional evidence in support of its claim, but these new arguments provide no basis to change the Court’s prior holding.”

Buckingham says coal mining on Corps property is pretty routine

Buckingham cited various examples of mining on Corps project lands, including:

  • At the Dewey Lake flood control project in Kentucky, the Huntington District of the Corps – the very district on behalf of which the U.S. has so aggressively pursued this litigation – has not only approved, but actually facilitated, the construction of substantially similar underground corridors for coal mining;
  • Coal mining operations have taken place within the premises of numerous flood control projects of the Corps, including Fishtrap Lake, Buckhorn Lake and R.D. Bailey Lake;
  • The Corps has entertained mining proposals at the East Lynn Lake, Paintsville Lake and Kehoe Lake flood control projects;
  • The Corps internally has recognized that there is no categorical prohibition of mining and that the “determination of suitability for mining” should be made on a “case-by-case basis”;
  • Congress understood that, by 1973, there were “97 coal operations which are located (i) within the boundaries of a Corps project, or (ii) outside the boundaries of the Corps project but within its drainage basin”;
  • The Corps has acknowledged for decades, in flood control projects throughout the nation, that it has “little or no control” over coal leasing or coal mining activities in proximity to its flood control projects unless the U.S. has duly restricted mining activities in the operative deeds (which the U.S. failed to do here).

Feds reiterate claims in July 10 brief

In a July 10 court filing, the U.S. rebutted the company arguments. “As the United States explained in its opening brief, the State of Ohio breached decades old statutory and contractual obligations when it entered into an agreement with a third party that allowed the mining of coal under the Burr Oak Reservoir and Tom Jenkins Dam flood control project (the ‘Project’),” it said.

The company misconstrues the United States’ motion and refutes an argument never advanced – the notion that Ohio’s actions are only unlawful if the statutes or contract expressly prohibit coal mining, said the feds. The statutes and project implementing documents make clear that at the time this project was conceived and implemented, all parties understood that coal mining at the Burr Oak project would not occur, it added. All parties similarly understood that the Corps would have primary authority to determine appropriate uses of lands and interests in lands acquired for the project.

“The lease by Ohio contravened the authorizing statute by deviating from the Corps’ plan for operation of the project and by using property acquired for this Project in a way not contemplated by the 1948 Agreement between the Corps and Ohio,” said the U.S.

Buckingham’s many references to other federal flood control projects where coal mining has been allowed are simply inapposite, the U.S. added. “Despite searching more than a dozen Corps offices across the country, none of the information acquired through Defendants’ discovery efforts over the past year evidences any inconsistency by the Corps or sheds any light on the Project at issue here, except to underscore the United States’ position – that the statute and contract together prohibit mineral disposition except with prior Corps approval. The agency’s approach in this matter is fully consistent with decades of Corps policy disfavoring coal mining on project lands and favoring acquisition and retention of mineral interests.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.