By Andrew Young

There have been a number of developments in the time since the last South Fork Cherry River update in The Highlands Voice. First and foremost, there has been some movement in the ongoing litigation against the U.S. Forest Service (USFS) for the agency’s failure to follow the Endangered Species Act and the National Environmental Policy Act when it authorized the South Fork Coal Co. to conduct extensive road-reconstruction work — such as regrading and widening the road and removing and replacing culverts — and daily coal hauling on Forest Service Road 249 (FR 249), which runs on steep slopes above the South Fork Cherry and Laurel Creek in the Monongahela National Forest (MNF), without doing any of the required environmental review. Coal hauling imperils the critically endangered candy darter by causing sedimentation and polluting the river below. South Fork Coal Co. has an extensive, ongoing record of water quality-based violations that have, and continue to, adversely modify candy darter designated critical habitat.  

The first movement in the United States District Court for the Southern District of West Virginia was when the USFS finally responded to the allegations in the complaint. In that response, the agency unsurprisingly denied everything for which a “response is required” for 163 lines and maintained all “affirmative defenses.”   

The other movement in the case is that South Fork Coal Co. motioned to “dismiss with prejudice for lack of standing” and filed a supporting memorandum with the court. Essentially, the coal company is attacking the conservation groups’ ability to be in court by going after the individual members “standing declarations.” This is a fairly typical move when dealing with aggressive extractive industry litigation tactics. Still, it is important because the organizations need their individual member’s connections to the issue to be sincere and the injury to be an actual and concrete harm suffered. Our standing is strong here, but Judge Volk will have the final say. 

Based on these actions and the fact that the Forest Service does not seem interested in approaching the conservation groups for settlement talks, it appears as though both the coal company and the Forest Service are dug in for the long haul. Beyond the millions of immediate profits on the line for the company, this case is of extreme importance at a national policy level because the use of Forest Service lands in the eastern United States for surface mining activities (which includes haul road construction) is supposed to be defacto prohibited under the Surface Mining Control and Reclamation Act (SMCRA) at 30 U.S.C. § 1272(e)(2). 

Because the coal haul road is permitted by both the USFS and by U.S. Office of Surface Mining Reclamation and Enforcement (OSMRE)/West Virginia DEP (WV DEP) and under a SMCRA permit for the section on the MNF, the West Virginia Highlands Conservancy and Allegheny Blue Ridge Alliance sent OSMRE a number of ten-day notice (TDN) requests that have resulted in at least four TDNs to be issued to South Fork Coal Co. and the WV DEP. 

These TDN requests came about during a meeting with OSMRE Deputy Director Sharon Buccino, as well as other OSMRE executive leadership, in which WVHC was invited to participate through the Alliance for Appalachia. In that meeting, WVHC brought up the organization’s concerns about the improvidently granted SMCRA permit for Haulroad #2 (O302211). The Haulroad #2 is permitted across the MNF for approximately 1.24 miles, which means that it is subject to the prohibitions on surface mining for certain lands under SMCRA and W.Va Code § 22-3-22(d)(5). According to federal law, federal regulation, and West Virginia State Law,  subject to valid existing rights, no surface-mining operations shall occur on any federal lands within the boundaries of any national forest unless “the surface operations and impacts are incident to an underground mine,” and the Secretary of the Interior (currently Deb Haaland) “finds that there are no significant recreational, timber, economic or other values which may be incompatible with the surface-mining.” 

Instead of going through this arduous and uncertain process, South Fork Coal Co. chose to defraud the state and Federal government and the American People who own the land by falsely claiming in the original SMCRA permitting documentation that “there are no lands within the proposed permit area which lie within or are adjacent to the boundaries of the National Park System, National Forest, National Wildlife Refuge system of trails, and/or the National Wilderness Preservation System, and areas under study for inclusion in these systems.” In response to a FOIA specifically asking for documents produced in connection to Haulroad #2 and W.Va Code § 22-3-22(d)(5), WV DEP provided no responsive documents and only sent general permit materials that did not address the scope of the information request. 

Screenshot of O302211’s Original Permit Map, Note #6

After making a citizen complaint laying this all out, OSMRE appears to agree with us and issued a Ten Day Notice on July 31, 2024, for “Permittee failed to seek a determination that mining is permissible for permit O-3022-11.” WVHC cited Reg 22-3-22(a), 22-3-22(d)(5), 38-2-3.21.c as the State Law, Regulation or Permit Condition believed to have been violated. We will know more in the coming days, and although that language from OSMRE sounds underwhelming, it is a big deal that the Feds are acknowledging that they believe a violation has occurred here, it’s not just rogue environmentalists. WV DEP is fully expected to provide an underwhelming and disappointing explanation, but rest assured we will keep the pressure on until FS 249 is permanently shut down to coal hauling as Congress intended when it explicitly included the prohibition on using National Forest lands for surface mining operations in SMCRA. The MNF is a treasured place that all of us rely on. Nobody should be above the law, especially not a rogue coal company submitting knowingly false critical information to get around the de facto prohibition on using our Public Lands to feed their mountain-destroying greed. 

Until next time, keep the faith, comrades…