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COA affirms ruling in favor of mining company, DNR

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The Indiana Court of Appeals has upheld the decision to release a surface mining reclamation bond obtained by a mining company, finding the reclamation requirements of the Indiana Surface Mining Control and Reclamation Act have been satisfied.

Squaw Creek Coal Co. was formed partly by Alcoa Inc. to mine coal from the Squaw Creek Mine. The coal was used to power Alcoa’s nearby aluminum production facility. In the 1960s and 1970s, Alcoa used abandoned haul roads in the mine to dispose of waste generated at its facility in coordination with the Indiana Department of Health. SCCC later obtained a permit to mine more of Squaw Creek Mine, and secured reclamation of the land with a bond.

At a public hearing on whether to release portions of the bond after active mining ended, concerns were raised about the disposal of Alcoa’s waste. The Indiana Department of Natural Resources approved the bond release, finding the threat of pollution wasn’t the type of impact anticipated by the bond requirements. An administrative law judge affirmed the decision to release parts of the bond, but vacated the DNR decision to affirm the release on other portions.

SCCC petitioned the trial court for judicial review, and the trial court reversed. Bill Musgrave, a former coal miner, appealed the trial court order in favor of SCCC and the DNR on SCCC’s petition for judicial review.

Musgrave filed a motion to dismiss SCCC’s petition for judicial review for lack of jurisdiction because the company did not serve summonses upon the NRC, the DNR, and the Indiana attorney general, and it didn’t pay the Marion Superior Court filing fee. The trial court denied the motion, which the appellate judges upheld. In Bill Musgrave v. Squaw Creek Coal Co. and Indiana Dept. of Natural Resources, No. 49A05-1104-MI-164, Judge L. Mark Bailey pointed out that the Indiana Administrative Orders and Procedures Act makes no mention of a filing fee and the Marion Superior Court prescribed no filing fee in this case. The judges also found SCCC’s process and service of its petition to be sufficient.

Musgrave is not collaterally estopped from challenging the DNR’s decision to release the reclamation bond on Permit S-008, as DNR and SCCC had argued, because the jurisdictional issue regarding Alcoa’s hazardous wastes was not necessarily adjudicated in the prior proceeding.

The trial court did not err by reversing the ALJ’s order and remanding for entry of judgment in favor of SCCC and the DNR. There is no genuine issue of material fact that SCCC met the Phase III release requirements of the Indiana Surface Mining Control and Reclamation Act, wrote Bailey, and SCCC also satisfied the requirements of the Indiana Administrative code and its own permit.

 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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