The legal dispute dates back to May 2011 when the U.S. Justice Department sued Buckingham, a privately owned Ohio-based coal producer, and ODNR in U.S. District Court for the Southern District of Ohio in Columbus after the state leased the company a 41.4-acre tract, known as the “corridor,” containing coal reserves under Burr Oak State Park in Athens and Morgan counties. Buckingham’s No. 7 mine tunneled under the park to reach untapped reserves the company controls east of the park.
Such actions violated the two flood control acts, DOJ alleged on behalf of the U.S. Army Corps of Engineers, as well as a 1948 agreement signed before the park’s lake and dam were built. Plaintiffs have argued mining could cause subsidence damage to both the lake and dam, an accusation denied by the defendants.
Shortly after the suit was filed, U.S. District Judge James Graham refused DOJ’s request for a temporary restraining order to block the tunneling. In siding with Buckingham, the judge ruled the U.S. failed to show “a strong likelihood of success on the merits. The relevant arguments speak in terms of contemplations and what the parties considered ‘desirable’ at the time—hardly the foundation needed for showing a strong likelihood on the merits.”
Since then, the suit has dragged on, with Buckingham mounting a counterclaim against the federal government. Pending before the court this summer was a motion for summary judgment by the company and state that could end the case if the judge rules in their favor.
OCA attorney Mark Stemm, in a July filing with the court, said that is exactly what the judge should do.
Underground mines like Buckingham No. 7 produce “the vast majority of Ohio’s coal,” he said. “In fact, just 10 underground mines accounted for two-thirds of coal produced in 2011, compared to the 64 surface mines, which produced the remaining one-third.” In all, Ohio’s coal output in 2011 was valued at nearly $1.2 billion—the fourth consecutive year the value topped $1 billion. With its two deep mines, Buckingham was the fourth-largest producer in 2011 in Ohio, a state that typically turns out more than 25 million tons of high-sulfur steam coal annually.
Stemm said the importance of the continued availability and mining of coal to Ohio and the nation cannot be understated. “The unprecedented proposition asserted by the Corps—that the Flood Control Acts of 1936 and 1944 make large tracts of land and the minerals below the surface throughout the country unavailable for mining—would have a significant effect,” he said. “The new statutory interpretation urged by the United States would jeopardize potential and ongoing underground mining operations across the state, threatening Ohio’s crucial supply of in-state coal. This would particularly affect communities in southeastern Ohio, an area that can least afford it.”
Moreover, he continued, the impact would extend well beyond the Ohio border, to mining operations “throughout the region and, indeed, the whole country. It would have far-reaching implications for state and national energy sectors, as well, and the economy as a whole.”