Appeals Court Bars Mine Road
By Dennis Webb
October 10, 2020 - The 10th Circuit Court of Appeals has temporarily barred further surface disturbance by the West Elk Mine in a national forest roadless area in Colorado's North Fork Valley so it can consider the legality of that activity.
The order by a three-judge panel Wednesday marks just the latest in numerous legal twists and turns related to the underground coal mine’s efforts to build temporary roads and well pads in some 1,700 acres of the Sunset Roadless Area so it can drill wells for venting methane produced during the mining.
The appeals court issued its temporary injunction after Chief Judge Philip Brimmer with the U.S. District Court of Colorado ruled Oct. 2 that a March ruling by the same three-judge appeals court panel didn’t explicitly preclude road construction or tree-clearing activities in the roadless area.
Conservation groups are appealing Brimmer’s Oct. 2 ruling, and the appeals court has set deadlines for parties to respond by mid-month. The mine is hoping to install some methane vents in the roadless area before the end of the construction season, and an attorney for the mine indicated in a court filing that construction “becomes subject to significantly increased weather risks starting around the end of October.”
“Mountain Coal has claimed that enjoining its illegal activities would force layoffs, but no evidence supports that assertion,” conservation groups say in a filing of their own.
Mountain Coal, a subsidiary of Arch Resources, owns the mine and disagrees that the construction activities it has undertaken this year and hope to continue are illegal.
A U.S. Forest Service rule specific to Colorado generally protects forest roadless areas in the state from road-building, but provided for possible temporary roads to be built in nearly 20,000 acres of roadless area in the North Fork Valley to facilitate underground coal mining. In March, however, the appeals court struck down that exception over the Forest Service’s failure to consider keeping about 4,900 acres in another roadless area out of the exception area.
The appeals court ordered Brimmer to void the entire exception area, but he didn’t do so until June 15. In the meantime the mine proceeded with building nearly a mile of road in the Sunset Roadless Area, which the Forest Service says was legal since Brimmer hadn’t yet issued the order required by the appeals court.
The state Division of Reclamation, Mining and Safety then stepped in, barring further surface disturbance in the roadless area due to questions about whether the mine had legal surface access. But it partly lifted its order in September after the Forest Service and Bureau of Land Management, which administers federal coal leases, indicated the mine has the right to access the new road and can drill wells from two pads it has built along the road and also build two more pads beside the road and drill additional wells.
“It would be incongruous for the (appeals) Court to set aside the entire North Fork Exception, but still intend for Mountain Coal — the only entity with any plans to avail itself of the Exception at the time of its adoption and presently — to proceed as if the Exception were still in place,” the conservation groups said in a filing with the appeals court.