U.S. Corps Of Engineers Argues Against Sanctions In Burr Oak Case

By
Steve Robb - Athens Messenger staff reporter

Dateline
Updated Mon, Aug 12, 2013 10:30 am

Buckingham Coal Co. has no basis for seeking court-ordered sanctions against the U.S. Army Corps of Engineers in a federal lawsuit, attorneys for the Corps are arguing.

The Messenger reported last month that a federal judge was asked by Buckingham Coal to order the Corps to pay attorney bills the company has incurred in defending what it asserts are frivolous claims made in a federal lawsuit filed by the Corps.

The lawsuit, filed in 2011, alleges that the state of Ohio did not have authority to unilaterally give permission for Buckingham Coal to mine a corridor beneath Burr Oak State Park to connect coal reserves the company has on opposite sides of the park. The Corps operates a flood control project at Burr Oak.

“In truth, (Buckingham Coal) seeks sanctions merely because it disagrees with the United States’ views on how the facts of this case and the relevant legal authorities should be interpreted,” states a response filed by Corps attorneys.

The attorneys argue that their lawsuit against Buckingham and the state of Ohio has a sound basis in law.

One of the arguments used by Buckingham to seek sanctions is that the Corps is still pursuing claims in the lawsuit that were already decided when the judge denied the Corps a temporary restraining order that would have prevented the mining while the lawsuit is pending. After the restraining order was denied, Buckingham completed mining the corridor.

Attorneys for the Corps counter that the judge has not yet decided the merits of their lawsuit, and that the ruling on the temporary restraining order cannot be used as a basis for sanctions.

Buckingham, in seeking the court-ordered sanctions, also argued that the Corps has been shifting its positions “when one claim or another has been exposed as devoid of any basis in fact or law.”

One of those shifting positions, according to Buckingham, is that the Corps of Engineers is now asserting that the Flood Control Acts of 1936 and 1944 prohibit all coal mining beneath flood control projects.

In its response, the Corps asserts that Buckingham is misrepresenting the Corps’ position.

“The United States has never argued in this case that coal mining at federal flood control projects is always prohibited,” the response states. “Instead, the United States pointed out that the coal interests at this project were deemed necessary for project purposes and were funded and obtained for project purposes.”

The Corps argues that the state gave Buckingham permission to mine without clearing it with the Corps and without giving the Corps an opportunity to assess beforehand whether the mining would be consistent with flood control purposes.

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