Buckingham, a privately owned coal operator in Glouster, Ohio, is trying to connect its existing No. 7 underground mine west of Burr Oak State Park in Athens and Morgan counties with an untapped reserve it controls east of the park. The Ohio Department of Natural Resources last year leased Buckingham a 41.4-acre tract, known as the “corridor,” containing coal reserves under the park. The Ohio General Assembly subsequently voted to authorize the lease.
On behalf of the Army Corps of Engineers, the DOJ filed suit against Buckingham and ODNR, claiming the state had no right to lease the coal rights to Buckingham under a 1948 agreement signed before the park’s lake and dam were built. Plaintiffs contend mining could cause subsidence damage to both the lake and dam.
Buckingham argued against a TRO, saying such a ruling could lead to the mine’s shutdown and the loss of 70 mining jobs and a $5.4 million annual payroll. The Ohio Coal Association intervened in the case on Buckingham’s behalf.
U.S. District Judge James Graham, sitting in Columbus, sided with the company in a strongly worded opinion. “The court thus finds the United States has failed to show a strong likelihood of success on the merits,” he ruled. “The relevant agreements speak in terms of contemplations and what the parties considered ‘desirable’ at the time—hardly the foundation needed for showing a strong likelihood of success on the merits.”
The federal government, the judge continued, believes Buckingham’s mining activity will increase the risk of subsidence. “In other words, it believes the layers of soil, clay and rock between the land surface and the roof of the mine will be compromised.” A Corps official testified to those concerns.
But when asked to state what he understood the likelihood of subsidence to be, the official “admitted he could not quantify the risk and stated that subsidence was simply a concern that had been raised by his staff,” the judge wrote. “He admitted also that he had not made a demonstration that the proposed mining activities would reduce the flood carrying capacity of the project.”
Witnesses testified to the various types of subsidence, but that “chimney subsidence” is the only type of concern to the corridor beneath the park. Chimney subsidence occurs when the mine roof becomes compromised or erodes and falls to the floor of the mine. Over time, more of the roof falls, narrowing the distance between the land surface and the roof of the mine.
Graham, however, concluded there is “no likelihood of chimney subsidence occurring at the corridor.” Buckingham’s witness, Dr. Vincent A. Scovazzo, director of geotechnical services with John T. Boyd Company, a mining engineering consulting firm, “gave the most complete, well-supported, and credible testimony on the matter,” the judge said.
The DOJ said it is reviewing the judge’s decision and had not decided on a possible appeal. Buckingham officials could not be reached for comment.
