By Dennis Webb

June 23, 2020 - A March federal appeals court ruling did not yet apply when Arch Coal bulldozed a new road into Colorado's Sunset Roadless Area in the Gunnison National Forest earlier this month, according to the U.S. Forest Service.

That’s because a district court judge had yet to enter an order effectuating the higher-court order, the agency says.

The recent bulldozing by Arch Coal in the Sunset Roadless Area

Photo courtsey of Matt Reed

Conservation groups contend Arch Coal illegally built more than a mile of road into the roadless area contrary to the March ruling, and the Forest Service improperly failed to intervene. Agency officials haven’t spoken publicly about the issue because it is in litigation, but the Department of Justice addressed it on behalf of the agency in a court filing Monday.

Arch Coal is trying to expand its West Elk Mine beneath about 1,700 acres of the roadless area. It needs to build roads in order to install wells to vent methane from the mine’s underground operation.

When the Forest Service adopted a Colorado-specific rule generally protecting roadless areas in national forests, it included a carve-out of nearly 20,000 acres in the North Fork Valley to accommodate possible coal mining. In March, the 10th Circuit Court of Appeals ruled that the Forest Service violated federal law when it adopted the North Fork Valley exception because of a failure to consider leaving 4,900 acres in another roadless area out of the exception area. The appeals court remanded the matter back to the district court and ordered that the lower court void the entire exception area. However, Colorado U.S. District Chief Judge Philip A. Brimmer didn’t mandate vacating the exception area until June 15, after conservation groups filed an emergency motion upon learning of the road construction this month.

“The Forest Service was not obligated to act in advance of any district court order following remand, and therefore had no obligation or authority to prevent road building activities prior to the issuance of the mandate,” the federal government said in its filing Monday.

In fact, it contends that the “activities of the mining company were allowed to occur largely due to the Plaintiffs’ own inaction in seeking to have the mandate executed.”

Arch Coal notified the Forest Service of its road-building plans May 29, saying it planned to begin June 2, according to the government court filing.

The conservation groups in the case also are asking Brimmer to halt all surface-disturbing activities by Arch Coal in the roadless area, but the federal government contends that request “is overly broad and not properly supported.”

Last week, the state Division of Reclamation, Mining and Safety ordered Arch Coal to cease its road-building in the roadless area, saying it has failed to maintain its legal right of entry. Arch Coal argues that the federal coal lease modifications it obtained to mine there were upheld by the appeals court, and the road-building lawfully occurred under rights granted by those lease modifications.

The federal government in its filing said the lease modifications remain intact, and what the conservation groups are asking “would modify, if not nullify,” those modifications.

Jeremy Nichols, with the group WildEarth Guardians, said in an email that “it's shocking that the Forest Service isn't only turning its back on its duty to protect our National Forests, now they seem to be pulling out all the stops in service of Arch Coal. For public lands stewards, this is a shameful abdication of responsibility to Americans.

“Thankfully the state is stepping up to defend Colorado's irreplaceable backcountry. Hopefully we'll ensure this is the last road Arch Coal ever punches into a protected roadless area.”

The Forest Service plans to do further environmental analysis to consider amending the state roadless rule and reinstate the North Fork exception, according to the new court filing.