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This article originally provided by
The Charleston Gazette
No conflict, Conservancy says
By Ken Ward Jr.
Staff writer
By Andrew Clevenger
Staff writer
CHARLESTON, W.Va. - 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.
Reach Ken Ward at kw...@wvgazette.com or 348-1702. Reach Andrew
Clevenger at acleven...@wvgazette.com or 348-1723.
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