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Judge sets timetable for Desert Rock case

December 8, 2007
| Herald Denver Bureau

DENVER - A federal judge has set a quick schedule for resolving a case about the coal mine next to the proposed Desert Rock power plant.

The plaintiffs - Din`E9 Citizens Against Ruining our Environment and Durango-based San Juan Citizens Alliance - sued the federal Office of Surface Mining in July for approving an expansion of the BHP Navajo coal mine.

Arizona Public Service and mine owner BHP later joined the lawsuit as co-defendants. Coal from the mine supplies Arizona Public Service's Four Corners Power Plant west of Farmington.

Based on the schedule set Thursday by U.S. Senior Judge John Kane, the case could be over by next summer, said Brad Bartlett, attorney for Din`E9 CARE.

Desert Rock power plant and its backer, Sithe Global, are not defendants in the lawsuit. But the plaintiffs are the same groups leading the opposition to Desert Rock, a 1,500-megawatt coal-fired power plant that would sit on Navajo land at the mouth of the BHP Navajo mine.

The plaintiffs claim the Office of Surface Mining failed to take a "hard look" at the mine's proposed expansion, as required by the National Environmental Policy Act. The strip mine has a 13,430-acre permit, and the expansion would be 3,800 acres, or nearly six square miles. Several tribal members live or graze livestock in the expansion area, plaintiffs say.

Defendants say the government followed the environmental laws, and the plaintiffs should not be able to sue because they failed to challenge the mine's permit in at the proper time.

Kane is also the lead judge in several other Four Corners environmental cases, including two lawsuits over the proposed Village at Wolf Creek.

During a 20-minute hearing Thursday, Kane asked lawyers for both sides to keep their legal pleadings as brief and efficient as possible.

"Since this case does involve, to some extent, the environment, let's reduce the number of trees that have to be slaughtered in the process," Kane said.

The case will not involve a traditional trial with a jury. Instead, most of the work will be done through written arguments, although Kane said oral testimony probably would be necessary. Oral arguments are scheduled for mid-April.

Although the mine is in New Mexico, the case is in federal court in Denver because the Office of Surface Mining is located here.

Australia-based BHP is a global energy company. Its proposed merger with Rio Tinto would make it the world's largest coal supplier.

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