CHARLESTON, W.Va. (Oct. 16, 2008) - Fola Coal Co. lawyers want a federal judge to withdraw from hearing a court action that seeks to block one of the company's strip mining permits.
In a filing last week, Fola lawyers James Crockett and Allyn Turner alleged that U.S. District Judge Robert C. Chambers' prior involvement with the West Virginia Highlands Conservancy "creates an appearance of impropriety."
Crockett and Turner cited an article published last week by The State Journal, a weekly business publication, in which Chambers said he was a Conservancy member before he became a federal judge.
But lawyers for the Conservancy maintained that Chambers ended his association with the group well before President Clinton appointed him to the bench in 1997, which clears him of any appearance of impropriety or need to recuse himself.
Previous court opinions have held that "prior association [with a group] does not, in itself, form a reasonable basis for questioning a judge's impartiality," wrote Joe Lovett of the Appalachian Center for the Economy and the Environment, who represents the Conservancy.
Chambers, who was a member of the Legislature from 1978 to 1996, declined to discuss the matter because the case is still pending in his court. He did issue a written order Wednesday clarifying his involvement with the Conservancy.
"To the best of my recollection, sometime in or around the mid-1980s I began receiving a periodic newsletter published by the Highlands Conservancy," Chambers wrote. "I believe that for some period during my legislative tenure I may have made the minimum financial contribution necessary to be a member and continue to receive the newsletter. I did not participate in the organization's meetings or other activities."
The judge wrote that during his decade as House of Delegates speaker, he may have participated in a panel discussion or event sponsored by the event. He ended his membership before he left the Legislature, and has not been involved with the group at all since, he wrote.
Chambers' order gives parties three days to respond to his disclosure.
Last month, the Conservancy asked Chambers for an injunction to block a permit for Fola's Ike Fork No. 1 and Ike Fork No. 2 surface mines along the Clay-Nicholas County border. A hearing is scheduled for Oct. 23 in Huntington.
The Conservancy action is part of a broader lawsuit that challenges what environmentalists say are lax permit reviews by the Army Corps of Engineers. Chambers previously ruled against the industry and the corps, and two major decisions in that case are being appealed by the Bush administration and coal companies.
Fola lawyers conceded in court papers that they had "no first-hand knowledge of the facts" of Chambers' involvement with the Conservancy and that the company "intends no disrespect to the judge."
However, Fola lawyers said, "this matter affects the livelihoods of hundreds of Fola 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," Crockett and Turner wrote.
They noted that federal rules state that any "justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."
Conservancy lawyers said they had checked the organization's membership records, and there is no evidence that he was a member or gave the group money since 1994.
But even past membership and financial support of a nonprofit would not require Chambers to step aside, Lovett wrote.
In an earlier case in which a judge disclosed that he was a former member of the Sierra Club before presiding over a case involving the group, "the Judicial Conference of the United States viewed resignation from membership in an advocacy organization as an effective immunization against motions to disqualify," Lovett argued.
"Fola may not seek to have the Judge disqualify himself because it does not like his rulings in previous cases," Lovett's memorandum states. "The rules are designed to prevent just that kind of forum shopping."
The State Journal report cited a biographical listing in the 2008 Almanac of the American Judiciary that listed the Conservancy as one of Chambers' "other activities."
Chambers' entry in the almanac also takes note of his reputation for fairness as a judge.
"Chambers is very fair, plaintiffs lawyers interviewed said," the entry states. "'He is probably the most open-minded judge in the district. I think he is very fair.' 'He is fair.' 'He is very fair.'
"Civil defense lawyers interviewed said Chambers is evenhanded. 'He is very fair. Some would expect a bias toward plaintiffs because of his background, but he is more evenhanded than you would expect.' 'He is fair to both sides.' 'He is very evenhanded.'"
During his tenure as speaker, Chambers helped push through a variety of tough environmental laws regulating groundwater pollution and solid waste.
Source/Writers:
West Virginia Gazette
By Ken Ward Jr., Staff writer
And By Andrew Clevenger, Staff writer
Contact:
Ken Ward at kward@wvgazette.com or 348-1702.
Andrew Clevenger at aclevenger@wvgazette.com or 348-1723.