Conservation Groups: Coal Mine Built Illegal Road
By Dennis Webb
June 16, 2020 - Conservation groups say that Arch Coal has illegally bulldozed more than a mile of road in the Sunset Roadless Area in the Gunnison National Forest in Colorado, despite a federal appeals court ruling in March that barred that action.
The company is denying that its actions are illegal.
The road work occurred in part of a roughly 1,700-acre roadless area in the North Fork Valley where the mine is seeking to expand its underground West Elk Mine. The mine is looking to build roads in order to drill wells to vent methane that would be generated by the underground coal production.
In March, the 10th Circuit Court of Appeals ruled that the U.S. Forest Service violated the National Environmental Policy Act when it adopted a North Fork Valley exception to a Colorado-specific roadless rule for national forests. That exception, applying to nearly 20,000 acres in total, was intended to accommodate coal mining in the area.
The appeals court found that the Forest Service improperly failed to consider keeping the 4,900-acre Pilot Knob Roadless Area out of the exception area. As a result, it overturned a district court ruling and ordered that the lower court void the entire exception area.
Arch Coal had asked unsuccessfully that the appeal court order be limited to the Pilot Knob area.
Conservation groups learned of the newly built road earlier this month. They say the Forest Service has taken no action to halt the roadwork, or more such work that the company is planning.
It turns out that Arch Coal’s road-building occurred before the lower court vacated its overturned decision, and vacated the North Fork exception area, as required by the appeals court. Colorado U.S. District Chief Judge Philip A. Brimmer took those actions Monday, after conservation groups filed an emergency motion Friday asking for enforcement of the appeals court ruling.
Jeremy Nichols, with the group WildEarth Guardians, said Arch Coal’s “actions were clearly meant to defy the court’s ruling. While we would say their actions were illegal, at a minimum, they took advantage of a potential legal technicality to deliberately punch a road into the roadless area.”
The groups are asking the lower court to order the Forest Service to withdraw its consent to any surface-disturbing activities in the North Fork exception area, and to order Arch Coal not to do any road-building or other surface-disturbing work in the Sunset Roadless Area.
Brimmer has given the Forest Service and Arch Coal until next Monday to respond to the groups’ motion.
The conservation groups say that Arch Coal had itself told the appeals court that ending the coal mining exception would keep it from building roads in the roadless area. In their emergency motion, the conservation groups indicate that the company has taken a new position that the end of the exception has no impact on its rights under its coal lease modifications applying to the roadless area. But the groups say that the appeals court ruling was retroactive, meaning the Forest Service couldn’t authorize road construction when it consented to the lease modifications.
Arch Coal said in a statement Monday that its local subsidiary, Mountain Coal, “has full authority under its existing lease — as expressly affirmed by the 10th Circuit — to conduct the limited roadbuilding necessary to facilitate mining activities at the West Elk mine.”
It didn’t elaborate on how the appeals court ruling affirms that authority.
The conservation groups also have asked the state Division of Reclamation, Mining and Safety to look into the matter. They say the agency should issue a cessation order because the mine lacks a legal right of entry to do the surface mining activities.
The Forest Service declined to comment because the matter remains in litigation.