IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA HUNTINGTON DIVISION. v. Civil Action No. 3:

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1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA HUNTINGTON DIVISION OHIO VALLEY ENVIRONMENTAL COALITION, COAL RIVER MOUNTAIN WATCH, WEST VIRGINIA HIGHLANDS CONSERVANCY, and THE SIERRA CLUB, Plaintiffs, v. Civil Action No. 3: UNITED STATES ARMY CORPS OF ENGINEERS; ROBERT L. VAN ANTWERP, Commander in Chief of Engineers, U.S. Army Corps of Engineers; DANA R. HURST, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District, Defendants. FOLA COAL COMPANY, LLC S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISQUALIFY PRESIDING JUDGE Fola Coal Company, LLC ( Fola ) 1 submits this memorandum in support of its motion, pursuant to 28 U.S.C. 455, asking the Honorable Robert C. Chambers to disqualify himself from presiding in this case. Because Judge Chambers reportedly was a member of and financial contributor to the West Virginia Highlands Conservancy ( WVHC ), Fola believes that his impartiality might reasonably be questioned in this action in which WVHC is a party plaintiff. Fola certainly intends no disrespect to Judge Chambers by presenting this motion. Undersigned counsel only very recently learned of the published accounts of Judge Chambers association with WVHC and just this day read published reports that Judge Chambers had been a member of and financial contributor to WVHC. This matter affects the livelihood of hundreds of Fola 1 Fola has filed a motion to intervene in this action.

2 employees and potentially has other far-reaching consequences to Fola, its neighbors and the public in general. Fola firmly believes that the interests of all involved will be served by having a judge preside over this case who has no such involvement with any party. In pertinent part, the United States Code provides that [a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. 455(a). As explained by Wright, Miller and Cooper: This provision has been authoritatively explained by the Reporter for the American Bar Association Committee that drew the Code of Judicial Conduct from which it is taken: Any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge s impartiality might reasonably be questioned is a basis for the judge s disqualification.... That interpretation has been widely accepted by the courts. They look to see whether a reasonable person, knowing all the circumstances, would believe that the judge s impartiality could be questioned. Wright, Miller & Cooper, Federal Practice & Procedure: Juris at (footnotes omitted). Thus, the question presented is one of common sense and reasonableness. [W]ould a reasonable person believe that the judge s impartiality could be questioned? Fola believes that question must be answered in the affirmative. The press report indicates that Judge Chambers association with WVHC went beyond simple membership to the provision of financial support. While this does not mean that Judge Chambers is partial to WVHC, it certainly implies that his impartiality could be questioned. Fola is aware that, in Sierra Club v. Simpkins Indus., Inc., 847 F.2d 1109 (1988), the Fourth Circuit ruled that a district judge, who had been a member of the Sierra Club for two 2

3 years prior to his elevation to the bench and who resigned his membership at that time, did not err by refusing to disqualify himself at the defendant s request. Id. at In that case, however, the district judge disclosed his past membership in the Sierra Club and offered to recuse himself. That offer was refused by the defendant, who then made a post-trial motion for recusal. Id. at Moreover, the association in that instance was very brief, and the opinion makes no mention of any financial support of the Sierra Club by the district judge. This case presents a markedly different set of circumstances. The commitment of judicial resources in Sierra Club after the district court s offer of recusal has not occurred in this case. To the contrary, the motion for leave to amend the complaint to add a challenge to Fola s permit has not been decided. Thus, this case is still in the starting blocks. For all these reasons, Fola believes that, in this instance, the letter and spirit of section 455(a) requires that Judge Chambers recuse himself from hearing this case and that the case be assigned to another judge. 2 FOLA COAL COMPANY, LLC By SPILMAN THOMAS & BATTLE, PLLC /s/ James S. Crockett James S. Crockett, Jr. (WV State Bar # 9229) Allyn G. Turner (WV State Bar # 5561) Andrew B. McCallister (WV State Bar # 10026) Spilman, Thomas & Battle, PLLC Post Office Box 273 Charleston, West Virginia Telephone: (304) Facsimile: (304) jcrockett@spilmanlaw.com aturner@spilmanlaw.com amccallister@spilmanlaw.com 2 On the very day WVHC filed its motion for leave to file an amended complaint in this action, Fola filed its own action for declaratory relief to decide the challenges to its complaint. That action has been assigned to another judge in this district. 3

4 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA HUNTINGTON DIVISION OHIO VALLEY ENVIRONMENTAL COALITION, COAL RIVER MOUNTAIN WATCH, WEST VIRGINIA HIGHLANDS CONSERVANCY, and THE SIERRA CLUB, Plaintiffs, v. Civil Action No. 3: UNITED STATES ARMY CORPS OF ENGINEERS; ROBERT L. VAN ANTWERP, Commander in Chief of Engineers, U.S. Army Corps of Engineers; DANA R. HURST, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District, Defendants, CERTIFICATE OF SERVICE I, James S. Crockett, Jr., counsel for Fola Coal Company, LLC, hereby certify that on October 10, 2008, I electronically filed the foregoing Fola Coal Company, LLC s Memorandum in Support of Its Motion to Disqualify Presiding Judge with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following: Joseph M. Lovett, Esq. Derek O. Teaney Esq. Appalachian Center for the Economy and the Environment Counsel for Plaintiffs 4

5 James M. Hecker Public Justice 1825 K Street, N.W. Suite 200 Washington, D.C Counsel for Plaintiffs Cynthia J. Morris, Esq. U.S. Department of Justice Environment & Natural Resources Division Environmental Defense Section P.O. Box Washington, D.C Counsel for Defendants Robert G. McLusky, Esq. Blair M. Gardner, Esq. James R. Snyder, Esq. Christopher M. Hunter, Esq. Jackson Kelly PLLC 1600 Laidley Tower P.O. Box 553 Charleston, WV Counsel for Intervenors /s/ James S. Crockett, Jr. James S. Crockett, Jr. (WV State Bar No. 9229)