Feds appeal decision in Burr Oak mining case

Staff Writer
Columbus CEO

The federal government is appealing a judge's ruling that upheld the state's 2010 decision to allow Buckingham Coal Co. to mine beneath Burr Oak State Park.

The case is being appealed, even though the mining has been completed.

In September, U.S. District Court Judge James Graham granted summary judgment in favor of the state and Buckingham in a 2011 lawsuit filed by the U.S. Army Corps of Engineers. This week, the U.S. Department of Justice filed notice it is appealing the ruling to the Sixth Circuit Court of Appeals.

The lawsuit resulted from a 2010 decision by the state of Ohio to give Buckingham Coal permission to mine a corridor of coal beneath the park as part of a deal under which the state received payment for the coal and Buckingham gave coal rights closer to Burr Oak Lake to the state. The Corps of Engineers is involved because Tom Jenkins Dam at Burr Oak was built as a federal flood control project, and the mining was to take place within the project area.

Buckingham wanted the corridor in order to connect its coal reserves on opposite sides of the park. The corridor was mined after Graham declined in 2011 to issue a temporary restraining order to stop the mining while the lawsuit was pending.

The Corps of Engineers argued in Graham's court that the state did not have authority to lease the coal rights beneath the flood control project to Buckingham, basing its arguments on decades-old federal flood control laws and on documents relating to creation of the Burr Oak flood control project.

In granting summary judgment to the state and Buckingham, Graham ruled that those documents indicated the federal government’s desire that coal not be mined beneath the flood control project, but lacked wording that expressly prohibited it.

"...The Unites States has not presented evidence from which it could be reasonably concluded that the state of Ohio breached any contractual or statutory obligation to the United States,” Graham ruled.

Department of Justice attorney Stephen Terrell, one of the lawyers involved in the case, declined to comment Thursday on why the decision was made to appeal Graham's ruling.