North Fork Coal Roadless Exception Again Tossed
By Dennis Webb
March 4, 2020 - For a second time, a court has voided the U.S. Forest Service’s North Fork Valley coal exception to the Colorado Roadless Rule.
The 10th Circuit Court of Appeals vacated the exemption, applying to nearly 20,000 acres, in a 2-1 ruling this week that overturned a lower court decision. It agreed with conservation groups that the Forest Service illegally failed to consider an alternative that would have kept 4,900 acres in the Pilot Knob Roadless Area out of the exemption area.
Pilot Knob is in the vicinity of the now-closed Elk Creek coal mine and currently faces no immediate threat from coal mining. But the ruling also likely will affect Arch Coal’s ongoing efforts to expand its underground West Elk Mine beneath some 1,700 acres of the Sunset Roadless Area, which requires building roads and installing surface vents to prevent the buildup of explosive methane in the mine.
The Colorado Roadless Rule generally protects roadless areas in national forest in the state from road-building. The North Fork exception was implemented to protect coal mining in the valley and the jobs and other economic benefits that industry provides.
In 2014, Judge R. Brooke Jackson in the U.S. District Court of Colorado vacated the North Fork exception, finding in part that federal agencies should have quantified the greenhouse gas emissions from coal mining and combustion that the exception would allow. Agencies subsequently did more environmental analysis and the exception was reinstated.
The West Elk Mine is now the only coal mine operating in the North Fork Valley. It had begun roadbuilding and surface disturbance in the Sunset Roadless Area, but Jackson last fall halted that expansion, pending further review by the federal Office of Surface Mining Reclamation and Enforcement. He ruled that in considering the mining plan for the expansion, the agency violated federal law in part by failing to consider requiring the mine to flare off the methane produced during mining operations, which would result in far lower greenhouse gas impacts than venting the methane to the atmosphere.
Now the appeals court ruling could mean the Forest Service also will have to do further environmental analysis, considering the possibility of removing Pilot Knob from the roadless exception area, before the exception area again could be reinstated and the latest legal obstacle to Arch Coal’s expansion could be lifted.
Arch Coal unsuccessfully had asked that if the appeals court vacate the North Fork exception, it do so only as it applied to Pilot Knob, rather than in its entirety. The court responded that the Colorado Roadless Rule doesn’t have a provision relating specifically to Pilot Knob, and vacating the North Fork exception only there “would require rewriting the regulation.”
The court ruled that the Forest Service “failed to provide a logically coherent explanation” for not considering leaving Pilot Knob out of the exception area. It said that not including Pilot Knob in that area “would foreclose mining only if production at the Elk Creek Mine resumed,” and it pointed out that the mine closed in 2013 and by 2015 its operator was focused on final reclamation.
Conservationists say Pilot Knob contains winter range for deer and bald eagles, severe winter range for elk, and potential future habitat for the Gunnison sage-grouse, federally listed as a threatened species.
Peter Hart, staff attorney for the Wilderness Workshop, one of the conservation groups involved in the case, said the Colorado Roadless Rule was implemented to protect the unique value of roadless areas, and the North Fork exception area includes some of the most spectacular remaining mid-elevation roadless acreage.
“I think that incongruity has been problematic for many of us since day one,” he said.
He said he views the ruling “as a victory for the Pilot Knob Roadless Area and for North Fork roadless areas more broadly but I think there are still open questions about how it’s going to play out” when it comes to the future of North Fork roadless acreage and West Elk Mine’s expansion efforts.
Arch Coal and Forest Service representatives didn’t respond by late Tuesday afternoon to requests for comment.
In its ruling, the appeals court unanimously ruled against the conservation group plaintiffs on another issue. The court decided that it was reasonable for the Forest Service and Bureau of Land Management not to consider requiring methane flaring when it came to Arch Coal’s applications for coal lease modifications in the roadless area.
It said that “the Forest Service and BLM “are not the agencies charged with approving flaring,” and that while Arch Coal says the Mine Safety and Health Administration has since approved a flaring system at its mine, it wasn’t certain that the agency would approve methane flaring for an active coal mine at the time of the lease modification actions.