Photo by Frank Gebhard, Allegheny Aperture Photo

By Andrew Young, chair of the WVHC Extractive Industries Committee and staff attorney for the Allegheny-Blue Ridge Alliance 

Since 2023, the West Virginia Highlands Conservancy, together with the Allegheny-Blue Ridge Alliance and Appalachian Voices, has been shining a bright light on South Fork Coal Company’s brazen use of oversized coal haul trucks through the Monongahela National Forest—home to some of West Virginia’s most cherished headwater streams. Despite repeated alarms, this illegal haul road above the South Fork of the Cherry River continues to threaten our public lands, imperiled and rare wildlife like the candy darter, and nearby communities who rely on the forest’s clean waters. 

Now, a new development demands our attention: the United States Office of Surface Mining Reclamation and Enforcement (OSMRE) has opened a formal public comment period on South Fork Coal’s belated request for a Valid Existing Rights (VER) determination. Below, we revisit how we got here, explain why the coal company’s claims don’t hold water, and rally readers to take decisive action—because your voices can shut down this rogue operation once and for all.

Monongahela National Forest and the Cherry River

At the heart of this conflict is a rugged corner of the Monongahela National Forest, where cold streams tumble down steep slopes to form the Cherry River, one of the Gauley’s main tributaries. For countless West Virginians and visitors, these waters and forests are a haven for trout fishing, paddling, hunting and camping. The Cherry’s tributaries support endangered species such as the candy darter and the Eastern hellbender, both relying on the region’s unspoiled creeks. Native brook trout also populate these headwaters, powering a vital recreation industry in local towns. Adventurers from around the country come to fish hidden pools, run the Gauley’s famous rapids farther downstream, or simply enjoy the wild beauty of these high-elevation forests.

When protected and healthy, the Cherry River watershed anchors West Virginia’s outdoor economy, supporting local outfitters, restaurants, gear shops, and small businesses in towns across the upper Gauley basin. Yet, the entire area now stands at risk from a coal operator that cuts corners and ignored regulations to run heavy trucks illegally across national forest land— putting both the forest and local communities in harm’s way.

Illegal coal hauling on Forest Road 249

South Fork Coal Company began using Forest Road 249 (FR 249) as a haul road for its Rocky Run Surface Mine in 2021. Under the Surface Mining Control and Reclamation Act (SMCRA), surface mining in national forests is broadly prohibited unless a company can prove it had valid rights before SMCRA took effect in 1977. However, state and federal regulators approved the SMCRA permit for the company’s haul road (called “Haulroad #2,” SMCRA permit O302211) in 2013 because South Fork Coal falsely claimed it would not cross national forest land. Grassroots organizations uncovered this only after the trucks started rolling coal. We filed complaints; we documented how FR 249 clearly cuts across the Monongahela; we demonstrated the company’s deceit; and we continue to demand accountability from state and federal officials for this gross dereliction of duty.

What are “Valid Existing Rights”?

A “Valid Existing Rights” (VER) determination is a narrow exception allowing surface mining operations on national forest land only if the operator held a recorded property right to mine or use the road before SMCRA’s 1977 enactment. If a mining operation was legally operating before new rules were put in place, it might be allowed to continue even after those rules changed. It’s meant to avoid depriving someone of a long-established, specific right, not to authorize newly invented claims. Caught in the act of hauling, South Fork Coal now claims “valid existing rights” after the fact. The company must show clear evidence that it had legal right to operate before protections were enacted. The record shows that the company’s arguments fall far short of the law’s strict test—which requires clear and convincing evidence of a pre-1977 easement or deed specifically granting use of the haul road.

A record of violations

Beyond sneaking an industrial coal haul road through national forest land, South Fork Coal has repeatedly violated environmental standards at its Rocky Run Surface Mine (and every other permitted operation), discharging heavy metals and sediment-laden runoff into the Cherry and Meadow River watersheds. Inspectors have documented frequent exceedances of legal water-quality limits, with the company showing no commitment to timely reclamation or pollution prevention. Every rainstorm and snowmelt erodes the steep slopes, pushing pollutants downstream and endangering wildlife like the candy darter and brook trout that depend on clear water. This pattern raises serious doubts about the company’s fitness to operate at all, much less on treasured public land.

Agencies failed to follow NEPA, ESA, and the 1990 MOU

One of the most troubling aspects of this saga is the failure of federal agencies—particularly the U.S. Forest Service and OSMRE—to honor their legal obligations. Under the National Environmental Policy Act (NEPA), the Forest Service should have performed a thorough environmental review, open to public comment, before granting any permit for a haul road. The Endangered Species Act (ESA) similarly mandates consultation with the U.S. Fish and Wildlife Service when an action could harm listed species, such as the candy darter. Neither happened.

In 1990, both agencies signed a Memorandum of Understanding (MOU), requiring them to coordinate on any VER claim in a national forest before approving something like a coal haul road. Yet they allowed heavy trucks to start rolling over FR 249 with no environmental analysis or ESA consultation. In essence, the agencies sidestepped the exact safeguards meant to protect the Monongahela’s high-value habitat and allow for public involvement. The failure is so blatant that in January 2025, the Biden Administration’s OSMRE issued a cessation order on the road for violating SMCRA § 522(e) and failing to show valid existing rights. Although that order briefly halted coal hauling, the company appealed under the new presidential administration and soon resumed its illegal use of the road once OSMRE ceased opposing the operation.

Communities confront an outlaw coal operator in some of the East’s most awe-inspiring lands

This situation reflects more than just a misunderstanding; it represents a growing dispute between concerned local communities and a coal operator whose permit application included inaccurate information—potentially due to uncertainty around its existing rights. The operator has continued to impact public waterways and is now seeking retroactive approval for actions already taken. Making matters worse, South Fork Coal Company has filed for bankruptcy—a tactic often used by coal operators to shed liabilities and walk away from environmental damage while far-off investors pocket the profits. Yet local community members, watershed organizations, and conservation groups have fought back by filing complaints, publicizing evidence, and compelling OSMRE to open the present VER comment period. The message is clear: a company cannot lie on a permit, desecrate our national forest, pollute pristine headwaters, and then escape its obligations through bankruptcy and mercenary lawyers. Americans—and especially West Virginians—refuse to let one operator’s short-term profiteering undermine the region’s long-term potential for a thriving outdoor-driven economy, with the Monongahela National Forest and the Gauley River Watershed as its linchpins.

These same citizens have seen how heavily the Cherry River depends on healthy ecosystems and strict environmental enforcement. Anglers know that fishing these cold headwaters has been a generational tradition—and if the forest and the river become intractably polluted, that tradition and the tourism dollars it brings vanish. Meanwhile, environmental groups track sediment plumes that smother trout and hellbenders. The fight against South Fork Coal stands for the entire region’s ecology, recreation economy, and way of life. By confronting this impudent effort to offload liabilities and dismantle legal safeguards, we stand not only for our clean water and public lands, but for the bedrock principle that justice demands polluters and thieves must never profit from the harm they inflict on communities and ecosystems.

Why a 30-Day extension is essential

OSMRE’s formal comment period on South Fork Coal’s VER claim is now underway, but documents remain confusing, more records have emerged, and Freedom of Information Act (FOIA) requests are still outstanding. Advocates insist on a 30-day extension to allow more time for residents, local officials, and experts to analyze newly released information. Democracy relies on informed public participation. Rushing the process would leave critical questions unanswered and risk letting the company off the hook. An extension fosters transparency and ensures a fair hearing of all voices.

It is time to defend the Monongahela with everything we’ve got

For over a year now, The Highlands Voice has tracked how a rogue coal company is hauling coal through our national forest without legitimate authority, polluting pristine streams, and then asking for retroactive approval. Now, OSMRE must decide if South Fork Coal’s “valid existing rights” claim holds up. This is our chance to speak out, to protect the Cherry River, to uphold the rule of law, and to ensure that the Monongahela National Forest remains a haven for anglers, hikers, and future generations.

We need every one of you in this fight. Now is the moment for full-court pressure—stake your claim, hold the line, and finish what we started. Let’s protect the Monongahela, the Gauley, and our shared future, once and for all.

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Below is an action alert with a suggested public comment. Please use it to make your voice heard. Personalize it with your own experiences on these lands. Let OSMRE know that West Virginians—and indeed all Americans—reject the idea that national forest roads can be secretly converted into coal highways. The Cherry River, candy darter, hellbender, and native brook trout all depend on our willingness to stand up and say: Enough. Deny this VER. Defend the forest. Our shared future is at stake.

Below is a suggested public comment that can be submitted through the Federal Register via email to Justin Adams, director of the Charleston OSMRE Field Office at jadams@osmre.gov Alternatively, visit wvhighlands.org and submit our action alert. 

SUGGESTED PUBLIC COMMENT

Subject: Deny South Fork Coal’s “Valid Existing Rights” Claim and Grant a 30-Day Comment Extension                                                 

Dear Director Adams,

I am writing to strongly urge the Office of Surface Mining Reclamation and Enforcement (OSMRE) to deny South Fork Coal Company’s request for a Valid Existing Rights (VER) determination, which would allow this bad actor company to conduct coal hauling operations within the Monongahela National Forest. I also respectfully request a 30-day extension of the public comment period.

The Monongahela National Forest is a cherished part of West Virginia, drawing visitors from around the country for fishing, rafting, hiking, hunting, and more. Allowing South Fork Coal Company to operate within the national forest would not only harm our forests but also threaten streams that harbor the native brook trout and endangered candy darter, along with the entire ecosystem that supports the state’s growing outdoor recreation economy. The Monongahela National Forest, and the waterways it supports, are parts of our state and national heritage, and they must be protected. 

South Fork Coal Company has been unlawfully conducting surface mining operations (coal-hauling) within the national forest since at least 2021. In its initial application for a state mining permit to operate “Haulroad #2,” the company falsely asserted that the operation would not enter the national forest. Now, after having been exposed and challenged by grassroots organizations, the company is claiming to have “valid existing rights” (VER) to operate within the national forest, but it hasn’t provided any credible or specific evidence to meet the strict criteria for a VER determination. Additionally, they’ve racked up numerous violations of environmental laws, including at the Rocky Run Surface Mine, the operation associated with Haulroad #2. Continued use of the road would perpetuate a history of violations and undercut the broad prohibition against mining activities within the national forest.

1. Illegal Mining Activity in the National Forest
   Surface mining on national forest lands is expressly forbidden unless a company can prove valid existing rights that predate the Surface Mining Control and Reclamation Act’s (SMCRA) enactment. South Fork Coal Company has not shown this, and is nonetheless seeking permission to operate within the national forest.
2. No Documented Right-of-Way: Under federal law, operators must show a recorded haul-road easement or equivalent property interest existing before SMCRA took effect in order to haul coal through the national forest. South Fork Coal Company cannot substantiate such a claim.
3. Failure to Follow NEPA, ESA, and the 1990 MOU: The Forest Service allowed coal hauling on FR 249 without conducting any environmental reviews required by the National Environmental Policy Act or consulting under the Endangered Species Act. These omissions threaten native brook trout and other sensitive species reliant on the Monongahela’s headwaters. South Fork Coal Company cannot credibly point to its usage of FR 249 to legitimize the company’s activity within the national forest, as the Forest Service failed to abide by these bedrock environmental laws when it agreed to permit the company’s use of the road.

A 30-Day Extension is Essential
More time is needed for residents, experts, local officials, and outdoor enthusiasts to understand what’s at stake, especially given the confusing claims made by South Fork Coal Company, newly released materials related to this request, and outstanding Freedom of Information Act requests for critically important records. Please extend the comment period so that more voices can be meaningfully heard, and so we can have an informed, transparent and fair decision-making process. 

Conclusion
For these reasons, I ask OSMRE to reject South Fork Coal’s claim of valid existing rights and grant the requested 30-day extension for the public to submit comments. Our national forests exist for the benefit of all, and SMCRA’s strong protections must remain intact to safeguard the Monongahela’s pristine landscapes, wildlife, and local economies for generations to come.

Thank you for your consideration of my comment and extension request.

Sincerely,
[Your Name]
[City, State]

How to Submit Your Comment

• Email your comment to jadams@osmre.gov
• If you submit comments by Email, please include your name and return address in your message.
• Feel free to personalize this comment to highlight your own experiences in the Monongahela National Forest—fishing for brook trout, exploring local trails, or supporting area businesses.
• Share this with friends, neighbors, and community members. The more voices OSMRE hears, the more we can protect the forest for future generations.