Mountain Top Mining And The Law

Essay by EssaySwap ContributorCollege, Undergraduate February 2008

download word file, 26 pages 0.0

Downloaded 418 times

W. T. MOBIL HOME COMMUNITY HOME OWNERS ASSOCIATION, Plaintiffs, v.

UNITED STATES FOREST SERVICE Defendants.

I. BACKGROUND This case involves the proposed issuing of permits by a Federal Agency required before a Mining Company can perform surface mining operations known as Mountain Top Removal.

The first permits fall under the Clean Water Act. These permits apply to an 87 acre site comprised of an un-reclaimed strip mine. The Court recognizes that the stated objective of the Clean Water Act is ?to restore and maintain the chemical, physical, and biological integrity of the Nations Waters.? James City County, VA. v. EPA, 12 F. 3rd. 1330, 1332 (4th Cir. 1993), cert. denied, 513 U.S.823 (1994) (citing 33 U.S.C. z 1251(a) ) Section 402 of the Clean Water Act ?makes it unlawful to discharge a pollutant from a point source to waters of the United States without NPDES Permit.

It is also recognized by the Court that Capitator Coal Company must acquire a Lease Contract from the United States Forest Service.

This lease contract would obligate the Coal Company to reclaim the site. Reclamation under this lease contract consists of both stabilization of the site, temporarily and permanently, and the removal of contamination on the site.

A. Factual Development Plaintiffs argue that, without Preliminary injunctive relief current conditions of Beaver Creek will be made worse. The stream currently has a high PH Level that will not support native or stocked population of trout. It is also alleged that if mining is allowed to take place the stream will cease to exist due to the further impoundment of water dammed by overburden.

Plaintiffs also argue that continued mining practices threaten to only complicate the existing problem of the impoundment of water by overburden. This impoundment is already a threat increased by heavy Spring rains and heavy logging practices by the Forest Service, of 50 acres directly above the impoundment. These threats have already increased the eminent collapse of the dam. Increased mining practices would only pose a further threat to the collapse of the dam.

Plaintiffs also contend that out of 15 home sites, that have individual wells, 9 have been contaminated by one hundred 50-gallon barrels of diesel fuel and a dozen 50-gallon barrels of 90W-gear lubricant that has contaminated the ground water. These products were left by the previous owner. Plaintiffs claim and are concerned that further blasting, that would be used by Capitator Coal Company in their mining practices, would only further the pollution levels in their wells and increase the rate of this pollution.

Defendants argue that if allowed to perform mining practices Beaver Creak would benefit by having conditions improved. And they also argue that the stream will continue to exist despite the further impoundment of water by the deposition of overburden. Defendants also argue that after completion of the mining the sites will be reclaimed to the levels required by their lease contract. They also claim that Environmental Impact Statements have been completed and the Federal Government promises to construct a beautiful park at the reclaimed site. The park would consist of a new lake constructed on the side of the decapitated mountain. Plaintiffs dispute all aspects of defendant?s arguments.

II. DISCUSSION A. Standard of Review 1. Preliminary Injunction Standard In deciding whether to grant a preliminary injunction, the Court is to consider three factors. First, it must balance the likelihood of irreparable harm to the plaintiff if the injunction is refused against the likelihood of irreparable harm to the defendant if it is granted. Second, the Court should consider the likelihood that the plaintiff will succeed on the merits. The more the balance of the harms leans away from the plaintiff, the stronger his showing on the merits must be. Finally, the Court must consider that public interest. Blackwelder Furniture Co. v. Seilig Mfg., 550 F. 2nd. 1801 (4th cir. 1977).

The two most important factors in applying a balancing test are the two factors dealing with the balancing of the harms. A plaintiff must demonstrate harm that is ?neither remote nor speculative, but actual and imminent.? (quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F. 2nd. 969, 975 ( 2nd. Cir. 1989) ).

Plaintiffs realize that Preliminary Injunction is a hard issue for the Court to decide upon. Plaintiffs also realize that they are faced by eminent harm if Capitator Coal Co. is issued lease rights by the U.S. Forest Service.

2. Arbitrary and Capricious Standard When reviewing an agency?s decision to determine if that decision was arbitrary and capricious, the scope of our review is narrow. Like the District Court, we look only to see if there is a ?clear error of judgement.? Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S. Ct. 1851, 104 L. Ed. 2d 377 (1989).

An agency?s rule would be arbitrary and capricious if the agency relied on factors that Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass?n v. State Farm Mut., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 433 (1983). Plaintiffs argue that the U.S. Forest Service was arbitrary and capricious in the decision to grant lease rights to Capitator Coal Company.

B. Application of Standard 1. Harm if Absence of Injunction The harm plaintiffs would incur if preliminary injunction is not granted is actual and imminent.

The W. T. Mobil Home Community Homeowners Association consists of 13 mobile homes. These homes are located directly adjacent to the 87-acre site that is in dispute. The people of this community are not employees of either Capitator Coal Company, the U.S. Forest Service, or a major logging company. They are mostly employed at the local poultry facility. They feel that their children (33 in total contained within the community) are in danger. Most moved to this community because it was a quite place to raise their family. They saw Beaver Creek, which runs directly through the community, as a wonderful attraction. Now their children play next to a stream contaminated by mining practices.

Plaintiffs also see an imminent danger in the dam that threatens their community with the coming of the Spring rains. This large impoundment of water created by the deposit of overburden threatens to break with the added pressure of heavy Spring rains. Further mining practices would only add to the danger of this impoundment collapsing and rushing down the valley to destroy plaintiff?s property. Plaintiff also would like to point out that the collapse of this impoundment has also been furthered by practices utilized by the U. S. Forest Service. The Forest Service has allowed heavy logging practices to take place above the impoundment and followed a ?let burn? policy in regard to a forest fire also directly above the impoundment. This has contributed to the stripping of over 50 acres of forestland. This stripping of the land has increased the amount of runoff coming into the impoundment, again only increasing the imminent danger imposed on the plaintiffs.

Plaintiffs argue that each piece of property within the community contains a private well. Nine of the 13 wells has been concluded to be contaminated by the hazardous chemicals located on the Capitator site. These chemicals consist of one hundred 50-gallon barrels of diesel fuel and a dozen 50-gallon barrels of 90W-gear lubricant. These materials have been allowed to contaminate the ground water supply used by plaintiffs. Plaintiffs dispute as to whether the Coal Company really intends to clean up the site to the extent that would create safe water for their usage.

Plaintiffs also dispute that the coal company will restore the site to approximate original contour after mining operations has ceased. Congress defined approximate original contour as, ?that surface configuration achieved by back filling and grading of the mined area so that the reclaimed area closely resembles the general surface configuration of the land prior to mining.? Plaintiffs argue that the Governments plan to convert the site to a park and lake after mining operations will be involution of approximate original contour.

1. Harm if Injunction Issues Defendants will argue that if the preliminary injunction issued they would experience a large loss in income. Plaintiffs see the other side yes there will be a loss of income, but there will be a greater threat to plaintiffs health and safety if mining operations are permitted by the Forest Service, to occur at this site.

Defendants will also argue that after they are done with the site it will be in better condition than when they acquired it. There is a dispute as to whether they really intend to reclaim the area to an appropriate level. Plaintiffs don?t want to see the site reclaimed to a level slightly better than when Capitator acquired the site. Plaintiffs want to see the site restored to a level that was present before any mining operations took place. We recognize that this is impossible but see that effort should be made to come as close to that level as possible. And after reviewing Capitators history of reclamation of sites Plaintiffs doubt that reclamation would take place to an appropriate level.

Defendants would also claim that if the site was reclaimed under their operations it would save the Federal Government and the taxpayers the huge cost of site clean up and restoration. This saving of Federal funding would and has been promised to be used to create a park at the reclaimed site. Plaintiffs contend that monetary value should not be used to decide who should do the clean up. They feel that since their health and safety is in threat that the most qualified should be considered in the decision of who should clean up the site. Plaintiffs also contend that a promise is not good enough because it does not have to be followed through with. They don?t see how the Federal Government building a park on the site will protect their safety. They see the building of a park as a diversion used to cover the reality of how well the clean up was done.

III. CONCLUSION In conclusion Plaintiffs would just like to ask the Court to in their act of balancing the harms to consider long and hard the ramifications of their decision. Should monetary consideration weigh more than the health and safety of plaintiffs? Plaintiffs merely want the Court to see their side of the story and for the Court to put itself in plaintiffs shoes. Why should plaintiffs suffer for actions of another? Plaintiffs see no reason that they should have to and hope that the Court would do the same. Plaintiffs only seek fair consideration from the Court in deciding whether the lease agreements between the U.S. Forest Service and Capitator Coal Company would be worth the trouble.

W. T. MOBIL HOME COMMUNITY HOME OWNERS ASSOCIATION, Plaintiffs, v.

UNITED STATES FOREST SERVICE Defendants.

I. BACKGROUND This case involves the proposed issuing of permits by a Federal Agency required before a Mining Company can perform surface mining operations known as Mountain Top Removal.

The first permits fall under the Clean Water Act. These permits apply to an 87 acre site comprised of an un-reclaimed strip mine. The Court recognizes that the stated objective of the Clean Water Act is ?to restore and maintain the chemical, physical, and biological integrity of the Nations Waters.? James City County, VA. v. EPA, 12 F. 3rd. 1330, 1332 (4th Cir. 1993), cert. denied, 513 U.S.823 (1994) (citing 33 U.S.C. z 1251(a) ) Section 402 of the Clean Water Act ?makes it unlawful to discharge a pollutant from a point source to waters of the United States without NPDES Permit.

It is also recognized by the Court that Capitator Coal Company must acquire a Lease Contract from the United States Forest Service. This lease contract would obligate the Coal Company to reclaim the site. Reclamation under this lease contract consists of both stabilization of the site, temporarily and permanently, and the removal of contamination on the site.

A. Factual Development Plaintiffs argue that, without Preliminary injunctive relief current conditions of Beaver Creek will be made worse. The stream currently has a high PH Level that will not support native or stocked population of trout. It is also alleged that if mining is allowed to take place the stream will cease to exist due to the further impoundment of water dammed by overburden.

Plaintiffs also argue that continued mining practices threaten to only complicate the existing problem of the impoundment of water by overburden. This impoundment is already a threat increased by heavy Spring rains and heavy logging practices by the Forest Service, of 50 acres directly above the impoundment. These threats have already increased the eminent collapse of the dam. Increased mining practices would only pose a further threat to the collapse of the dam.

Plaintiffs also contend that out of 15 home sites, that have individual wells, 9 have been contaminated by one hundred 50-gallon barrels of diesel fuel and a dozen 50-gallon barrels of 90W-gear lubricant that has contaminated the ground water. These products were left by the previous owner. Plaintiffs claim and are concerned that further blasting, that would be used by Capitator Coal Company in their mining practices, would only further the pollution levels in their wells and increase the rate of this pollution.

Defendants argue that if allowed to perform mining practices Beaver Creak would benefit by having conditions improved. And they also argue that the stream will continue to exist despite the further impoundment of water by the deposition of overburden. Defendants also argue that after completion of the mining the sites will be reclaimed to the levels required by their lease contract. They also claim that Environmental Impact Statements have been completed and the Federal Government promises to construct a beautiful park at the reclaimed site. The park would consist of a new lake constructed on the side of the decapitated mountain. Plaintiffs dispute all aspects of defendant?s arguments.

II. DISCUSSION A. Standard of Review 1. Preliminary Injunction Standard In deciding whether to grant a preliminary injunction, the Court is to consider three factors. First, it must balance the likelihood of irreparable harm to the plaintiff if the injunction is refused against the likelihood of irreparable harm to the defendant if it is granted. Second, the Court should consider the likelihood that the plaintiff will succeed on the merits. The more the balance of the harms leans away from the plaintiff, the stronger his showing on the merits must be. Finally, the Court must consider that public interest. Blackwelder Furniture Co. v. Seilig Mfg., 550 F. 2nd. 1801 (4th cir. 1977).

The two most important factors in applying a balancing test are the two factors dealing with the balancing of the harms. A plaintiff must demonstrate harm that is ?neither remote nor speculative, but actual and imminent.? (quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F. 2nd. 969, 975 ( 2nd. Cir. 1989) ).

Plaintiffs realize that Preliminary Injunction is a hard issue for the Court to decide upon. Plaintiffs also realize that they are faced by eminent harm if Capitator Coal Co. is issued lease rights by the U.S. Forest Service.

2. Arbitrary and Capricious Standard When reviewing an agency?s decision to determine if that decision was arbitrary and capricious, the scope of our review is narrow. Like the District Court, we look only to see if there is a ?clear error of judgement.? Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S. Ct. 1851, 104 L. Ed. 2d 377 (1989).

An agency?s rule would be arbitrary and capricious if the agency relied on factors that Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass?n v. State Farm Mut., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 433 (1983). Plaintiffs argue that the U.S. Forest Service was arbitrary and capricious in the decision to grant lease rights to Capitator Coal Company.

B. Application of Standard 1. Harm if Absence of Injunction The harm plaintiffs would incur if preliminary injunction is not granted is actual and imminent.

The W. T. Mobil Home Community Homeowners Association consists of 13 mobile homes. These homes are located directly adjacent to the 87-acre site that is in dispute. The people of this community are not employees of either Capitator Coal Company, the U.S. Forest Service, or a major logging company. They are mostly employed at the local poultry facility. They feel that their children (33 in total contained within the community) are in danger. Most moved to this community because it was a quite place to raise their family. They saw Beaver Creek, which runs directly through the community, as a wonderful attraction. Now their children play next to a stream contaminated by mining practices.

Plaintiffs also see an imminent danger in the dam that threatens their community with the coming of the Spring rains. This large impoundment of water created by the deposit of overburden threatens to break with the added pressure of heavy Spring rains. Further mining practices would only add to the danger of this impoundment collapsing and rushing down the valley to destroy plaintiff?s property. Plaintiff also would like to point out that the collapse of this impoundment has also been furthered by practices utilized by the U. S. Forest Service. The Forest Service has allowed heavy logging practices to take place above the impoundment and followed a ?let burn? policy in regard to a forest fire also directly above the impoundment. This has contributed to the stripping of over 50 acres of forestland. This stripping of the land has increased the amount of runoff coming into the impoundment, again only increasing the imminent danger imposed on the plaintiffs.

Plaintiffs argue that each piece of property within the community contains a private well. Nine of the 13 wells has been concluded to be contaminated by the hazardous chemicals located on the Capitator site. These chemicals consist of one hundred 50-gallon barrels of diesel fuel and a dozen 50-gallon barrels of 90W-gear lubricant. These materials have been allowed to contaminate the ground water supply used by plaintiffs. Plaintiffs dispute as to whether the Coal Company really intends to clean up the site to the extent that would create safe water for their usage.

Plaintiffs also dispute that the coal company will restore the site to approximate original contour after mining operations has ceased. Congress defined approximate original contour as, ?that surface configuration achieved by back filling and grading of the mined area so that the reclaimed area closely resembles the general surface configuration of the land prior to mining.? Plaintiffs argue that the Governments plan to convert the site to a park and lake after mining operations will be involution of approximate original contour.

1. Harm if Injunction Issues Defendants will argue that if the preliminary injunction issued they would experience a large loss in income. Plaintiffs see the other side yes there will be a loss of income, but there will be a greater threat to plaintiffs health and safety if mining operations are permitted by the Forest Service, to occur at this site.

Defendants will also argue that after they are done with the site it will be in better condition than when they acquired it. There is a dispute as to whether they really intend to reclaim the area to an appropriate level. Plaintiffs don?t want to see the site reclaimed to a level slightly better than when Capitator acquired the site. Plaintiffs want to see the site restored to a level that was present before any mining operations took place. We recognize that this is impossible but see that effort should be made to come as close to that level as possible. And after reviewing Capitators history of reclamation of sites Plaintiffs doubt that reclamation would take place to an appropriate level.

Defendants would also claim that if the site was reclaimed under their operations it would save the Federal Government and the taxpayers the huge cost of site clean up and restoration. This saving of Federal funding would and has been promised to be used to create a park at the reclaimed site. Plaintiffs contend that monetary value should not be used to decide who should do the clean up. They feel that since their health and safety is in threat that the most qualified should be considered in the decision of who should clean up the site. Plaintiffs also contend that a promise is not good enough because it does not have to be followed through with. They don?t see how the Federal Government building a park on the site will protect their safety. They see the building of a park as a diversion used to cover the reality of how well the clean up was done.

III. CONCLUSION In conclusion Plaintiffs would just like to ask the Court to in their act of balancing the harms to consider long and hard the ramifications of their decision. Should monetary consideration weigh more than the health and safety of plaintiffs? Plaintiffs merely want the Court to see their side of the story and for the Court to put itself in plaintiffs shoes. Why should plaintiffs suffer for actions of another? Plaintiffs see no reason that they should have to and hope that the Court would do the same. Plaintiffs only seek fair consideration from the Court in deciding whether the lease agreements between the U.S. Forest Service and Capitator Coal Company would be worth the trouble.

W. T. MOBIL HOME COMMUNITY HOME OWNERS ASSOCIATION, Plaintiffs, v.

UNITED STATES FOREST SERVICE Defendants.

I. BACKGROUND This case involves the proposed issuing of permits by a Federal Agency required before a Mining Company can perform surface mining operations known as Mountain Top Removal.

The first permits fall under the Clean Water Act. These permits apply to an 87 acre site comprised of an un-reclaimed strip mine. The Court recognizes that the stated objective of the Clean Water Act is ?to restore and maintain the chemical, physical, and biological integrity of the Nations Waters.? James City County, VA. v. EPA, 12 F. 3rd. 1330, 1332 (4th Cir. 1993), cert. denied, 513 U.S.823 (1994) (citing 33 U.S.C. z 1251(a) ) Section 402 of the Clean Water Act ?makes it unlawful to discharge a pollutant from a point source to waters of the United States without NPDES Permit.

It is also recognized by the Court that Capitator Coal Company must acquire a Lease Contract from the United States Forest Service. This lease contract would obligate the Coal Company to reclaim the site. Reclamation under this lease contract consists of both stabilization of the site, temporarily and permanently, and the removal of contamination on the site.

A. Factual Development Plaintiffs argue that, without Preliminary injunctive relief current conditions of Beaver Creek will be made worse. The stream currently has a high PH Level that will not support native or stocked population of trout. It is also alleged that if mining is allowed to take place the stream will cease to exist due to the further impoundment of water dammed by overburden.

Plaintiffs also argue that continued mining practices threaten to only complicate the existing problem of the impoundment of water by overburden. This impoundment is already a threat increased by heavy Spring rains and heavy logging practices by the Forest Service, of 50 acres directly above the impoundment. These threats have already increased the eminent collapse of the dam. Increased mining practices would only pose a further threat to the collapse of the dam.

Plaintiffs also contend that out of 15 home sites, that have individual wells, 9 have been contaminated by one hundred 50-gallon barrels of diesel fuel and a dozen 50-gallon barrels of 90W-gear lubricant that has contaminated the ground water. These products were left by the previous owner. Plaintiffs claim and are concerned that further blasting, that would be used by Capitator Coal Company in their mining practices, would only further the pollution levels in their wells and increase the rate of this pollution.

Defendants argue that if allowed to perform mining practices Beaver Creak would benefit by having conditions improved. And they also argue that the stream will continue to exist despite the further impoundment of water by the deposition of overburden. Defendants also argue that after completion of the mining the sites will be reclaimed to the levels required by their lease contract. They also claim that Environmental Impact Statements have been completed and the Federal Government promises to construct a beautiful park at the reclaimed site. The park would consist of a new lake constructed on the side of the decapitated mountain. Plaintiffs dispute all aspects of defendant?s arguments.

II. DISCUSSION A. Standard of Review 1. Preliminary Injunction Standard In deciding whether to grant a preliminary injunction, the Court is to consider three factors. First, it must balance the likelihood of irreparable harm to the plaintiff if the injunction is refused against the likelihood of irreparable harm to the defendant if it is granted. Second, the Court should consider the likelihood that the plaintiff will succeed on the merits. The more the balance of the harms leans away from the plaintiff, the stronger his showing on the merits must be. Finally, the Court must consider that public interest. Blackwelder Furniture Co. v. Seilig Mfg., 550 F. 2nd. 1801 (4th cir. 1977).

The two most important factors in applying a balancing test are the two factors dealing with the balancing of the harms. A plaintiff must demonstrate harm that is ?neither remote nor speculative, but actual and imminent.? (quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F. 2nd. 969, 975 ( 2nd. Cir. 1989) ).

Plaintiffs realize that Preliminary Injunction is a hard issue for the Court to decide upon. Plaintiffs also realize that they are faced by eminent harm if Capitator Coal Co. is issued lease rights by the U.S. Forest Service.

2. Arbitrary and Capricious Standard When reviewing an agency?s decision to determine if that decision was arbitrary and capricious, the scope of our review is narrow. Like the District Court, we look only to see if there is a ?clear error of judgement.? Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S. Ct. 1851, 104 L. Ed. 2d 377 (1989).

An agency?s rule would be arbitrary and capricious if the agency relied on factors that Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass?n v. State Farm Mut., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 433 (1983). Plaintiffs argue that the U.S. Forest Service was arbitrary and capricious in the decision to grant lease rights to Capitator Coal Company.

B. Application of Standard 1. Harm if Absence of Injunction The harm plaintiffs would incur if preliminary injunction is not granted is actual and imminent.

The W. T. Mobil Home Community Homeowners Association consists of 13 mobile homes. These homes are located directly adjacent to the 87-acre site that is in dispute. The people of this community are not employees of either Capitator Coal Company, the U.S. Forest Service, or a major logging company. They are mostly employed at the local poultry facility. They feel that their children (33 in total contained within the community) are in danger. Most moved to this community because it was a quite place to raise their family. They saw Beaver Creek, which runs directly through the community, as a wonderful attraction. Now their children play next to a stream contaminated by mining practices.

Plaintiffs also see an imminent danger in the dam that threatens their community with the coming of the Spring rains. This large impoundment of water created by the deposit of overburden threatens to break with the added pressure of heavy Spring rains. Further mining practices would only add to the danger of this impoundment collapsing and rushing down the valley to destroy plaintiff?s property. Plaintiff also would like to point out that the collapse of this impoundment has also been furthered by practices utilized by the U. S. Forest Service. The Forest Service has allowed heavy logging practices to take place above the impoundment and followed a ?let burn? policy in regard to a forest fire also directly above the impoundment. This has contributed to the stripping of over 50 acres of forestland. This stripping of the land has increased the amount of runoff coming into the impoundment, again only increasing the imminent danger imposed on the plaintiffs.

Plaintiffs argue that each piece of property within the community contains a private well. Nine of the 13 wells has been concluded to be contaminated by the hazardous chemicals located on the Capitator site. These chemicals consist of one hundred 50-gallon barrels of diesel fuel and a dozen 50-gallon barrels of 90W-gear lubricant. These materials have been allowed to contaminate the ground water supply used by plaintiffs. Plaintiffs dispute as to whether the Coal Company really intends to clean up the site to the extent that would create safe water for their usage.

Plaintiffs also dispute that the coal company will restore the site to approximate original contour after mining operations has ceased. Congress defined approximate original contour as, ?that surface configuration achieved by back filling and grading of the mined area so that the reclaimed area closely resembles the general surface configuration of the land prior to mining.? Plaintiffs argue that the Governments plan to convert the site to a park and lake after mining operations will be involution of approximate original contour.

1. Harm if Injunction Issues Defendants will argue that if the preliminary injunction issued they would experience a large loss in income. Plaintiffs see the other side yes there will be a loss of income, but there will be a greater threat to plaintiffs health and safety if mining operations are permitted by the Forest Service, to occur at this site.

Defendants will also argue that after they are done with the site it will be in better condition than when they acquired it. There is a dispute as to whether they really intend to reclaim the area to an appropriate level. Plaintiffs don?t want to see the site reclaimed to a level slightly better than when Capitator acquired the site. Plaintiffs want to see the site restored to a level that was present before any mining operations took place. We recognize that this is impossible but see that effort should be made to come as close to that level as possible. And after reviewing Capitators history of reclamation of sites Plaintiffs doubt that reclamation would take place to an appropriate level.

Defendants would also claim that if the site was reclaimed under their operations it would save the Federal Government and the taxpayers the huge cost of site clean up and restoration. This saving of Federal funding would and has been promised to be used to create a park at the reclaimed site. Plaintiffs contend that monetary value should not be used to decide who should do the clean up. They feel that since their health and safety is in threat that the most qualified should be considered in the decision of who should clean up the site. Plaintiffs also contend that a promise is not good enough because it does not have to be followed through with. They don?t see how the Federal Government building a park on the site will protect their safety. They see the building of a park as a diversion used to cover the reality of how well the clean up was done.

III. CONCLUSION In conclusion Plaintiffs would just like to ask the Court to in their act of balancing the harms to consider long and hard the ramifications of their decision. Should monetary consideration weigh more than the health and safety of plaintiffs? Plaintiffs merely want the Court to see their side of the story and for the Court to put itself in plaintiffs shoes. Why should plaintiffs suffer for actions of another? Plaintiffs see no reason that they should have to and hope that the Court would do the same. Plaintiffs only seek fair consideration from the Court in deciding whether the lease agreements between the U.S. Forest Service and Capitator Coal Company would be worth the trouble.

The Effect of a Large Body of Water On Local Temperature.

Background Within this experiment I will show the effect the Potomac River has on the air temperature around it.

To do this you must first understand the properties of water. One property stands out above all others when looking at temperature. This property being specific heat. Specific heat refers to the amount of heat energy required to raise a volume of 1 gram of water by 1 degree Celsius. This gives water a specific heat of 1. Other substances like a sandy clay soil have a specific heat of 0.33 and granite with a specific heat of 0.19. Water?s ability to have a high specific heat means that it can store more heat energy than any other substance. Because of the effect of specific heat, water heats slowly and cools slowly. A large body of water like the Potomac River can store a large amount of heat energy while undergoing only a small change in the temperature then gradually release it to modify the temperature of an area. This phenomenon is why temperatures are usually warmer during the night along the river than in the City of Martinsburg.

A large-scale example of the effect of water?s specific heat on temperature is the coastal areas of the United States. Areas near the Atlantic and Pacific Oceans usually have milder winters and cooler summers than inland regions due to specific heat. As discussed earlier land and water have unequal heating properties. On land or inland regions solar energy is absorbed as heat into only a thin lager of soil, this heat is then released quickly. Water, on the other hand allows solar energy to penetrate deep into many layers. It then gets circulated much deeper than on land and is held. In this way, a body of water can act like a large storage area for heat energy. This is supported in the book ?Teach Yourself Weather,? when it said, ?Through Autumn and early winter the sea is in effect, a huge reservoir of heat, maintaining adjacent coastal areas much milder than regions well inland. In summer on the other hand, it provides cooling sea breezes often keeping average temperatures near coasts below those of inland regions. (P.189). This is why people flock to the Country?s coasts during the summer to escape the heat of inland areas they live in. In the following experiment I intend to show that the same effect created by the earth?s oceans can be seen on a local basis on smaller bodies of water.

Experiment To conduct this experiment, I placed a minimum and maximum thermometer at a spot along the Potomac River. This area of the Potomac River has an average depth of around twenty feet. The current is at a minimum and the width is an average of around three hundred feet. The thermometer was placed approximately thirty feet away from the water and out of direct exposure to the wind.

To collect the temperature readings for the City of Martinsburg, I used a local elementary school?s weather station. This school is surrounded by moderately open space. Its weather station is set up so that its minimum and maximum thermometer is monitored and recorded daily by a computer. The school is not located near a large body of water of any kind.

Over approximately a three-week period, I collected minimum and maximum temperature readings at both sites daily. Chart 1 in the Appendix shows the relationship of high and low temperatures at the site along the Potomac River. Chart 2 shows the relationship of high and low temperatures at the site in the City of Martinsburg. The next step I took in this experiment was to compare the high temperatures of both sites. Chart 3 in the Appendix shows this relationship. As you can see, there was little difference in the high temperatures between the site on the Potomac River and the one in the City of Martinsburg. There was usually no more than an eight-degree temperature difference and on some days, for instance like on April 2, April 9 and April 16 there was only a one-degree difference. On the last day, April 21, there was no temperature difference at all. I expected this chart to come to this conclusion. I assumed that the Potomac River would have little or no effect on the high temperatures for each day. The high temperatures are occurring during the day when the earth is being hit with the most solar energy. This energy is heating the air surrounding the earth?s surface and at this time being absorbed by the large bodies of water on the earth?s surface.

The next chart (Chart 4) in the Appendix shows a comparison between the low temperatures of the Potomac River and the City of Martinsburg sites. This chart shows the true effects of specific heat of water on air temperature, and proves that the large-scale phenomenon that occurs within the oceans also holds true to smaller bodies of water and local air temperatures. The low temperature readings that were taken at the Potomac River site were higher than the low temperature readings taken at the school in Martinsburg. This shows that the Potomac River held the heat of the solar energy it absorbed during the warm days, which in turn created milder temperatures at night. On some days such as April 7 and April 13 the differences in low temperatures were more than ten degrees.

This experiment has shown that a large body of water like the Potomac River can have an effect on a localized area?s temperature. This is the same effect the oceans have on the coastal regions only on a much larger scale. Processes like this one work universally no matter the scale. These smaller scale processes are generally overlooked or thought of as being unimportant in inland regions. But their importance is a great one. These are the small-scale processes that effect us on a day to day basis along large inland bodies of water. They can have a noticeable effect to those who live their lives around these inland bodies of water.