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Representatives from High Country Conservation Advocates and the Wilderness Workshop this week joined representatives from the Colorado Division of Reclamation Mining and Safety to tour the new road built by the Mountain Coal Co. in the Sunset Roadless Area of the Gunnison National Forest near Kebler Pass. (Provided by Juli Slivka, Wilderness Workshop)

Mountain Coal Co. says the road it blazed into the Sunset Roadless Area below Kebler Pass is legal and that the Forest Service approved the construction.

Conservation groups have attacked the Somerset-based mining company for building the road in early June after the 10th U.S. Circuit Court of Appeals on March 2 ruled the Forest Service violated federal environmental laws when it allowed an exception to the Colorado Roadless Rule in the North Fork Valley that permitted the expansion of the West Elk coal mine. The court overturned the so-called North Fork Exception and ordered the Forest Service to restart environmental review of the coal mine’s request to expand its mine near Paonia. 

“Mountain Coal’s leases clearly state that Mountain Coal is required to comply with Forest Service regulations, except where the regulations would be inconsistent with the rights under the lease. There is no dispute that Mountain Coal requires roads to access the leased coal,” reads a statement from Deck Slone, a spokesman for Arch Coal, the owner of Mountain Coal that recently changed its name to Arch Resources. “Such roadbuilding is also authorized under another exception to the Colorado Roadless Rule, which allows roadbuilding where roads are needed under rights granted by statute. This includes a valid lease issued under the Mineral Leasing Act.”

EARLIER: A federal court ruled a coal company couldn’t build a road on public land near Paonia. The company did it anyway.

The Colorado Division of Reclamation Mining and Safety this week served Mountain Coal executives with an order requiring them to stop building the road. The division’s order followed a ruling Monday by the U.S. District Court in Denver That ruling installed the 10th Circuit’s mandate that vacated the North Fork Exception and ordered the mine company and Forest Service to respond by June 22. 

Conservation groups that have marched in protest of the new road this week argue that Mountain Coal took advantage of the pandemic shutdown of the court system to build a road between the 10th Circuit’s order and the U.S. District Court’s ruling. 

Mountain Coal Co. built a new road in early June in the Sunset Roadless Area, after the 10th U.S. Circuit Court of Appeals overturned an exception to the Colorado Roadless Rule that allowed the mining company to expand its West Elk mine. The Colorado Division of Reclamation Mining and Safety has ordered the company to stop building news roads in the roadless area of the Gunnison National Forest near Kebler Pass. (Provided by Juli Slivka, Wilderness Workshop)

The new road and the eruption of protests follow a decade of fighting over the West Elk plan to expand. Arch Resources first proposed an expansion of its Mountain Coal operation into about 1,700 acres of the 5,800-acre Sunset Roadless Area of the Gunnison National Forest in 2010. The Forest Service carved out the North Fork Exception to accommodate the West Elk Mine expansion, which called for the company building about six miles of new roads to drill 50 vents for methane from the expanded mine. 

The Forest Service’s exemption to the state’s 2012 roadless rule, sparked years of lawsuits and appeals as part of the agency’s intensive environmental review of the mine expansion proposal. The Center for Biological Diversity, the Sierra Club, Wilderness Workshop and High Country Conservation Advocates sued to stop the mine expansion in 2017 and a U.S. District Court rejected their arguments. The 10th Circuit U.S. Court of Appeals in Denver overturned that decision in March, concluding the Forest Service “failed to provide a legally coherent explanation” for not considering less harmful options to growing the coal mine into a roadless area. 

Slone dismissed the argument that the road was built illegally, saying tree cutting “is expressly allowed when it is incidental to an authorized management activity, which includes exercising rights under a valid mineral lease.” 

“Mountain Coal consulted with the Forest Service before starting any work,” Slone said. “The Forest Service did not oppose roadbuilding.”

Levi Broyles, Paonia District Ranger with the Grand Mesa, Uncompahgre and Gunnison National Forests, speaks with a crowd protesting a new road built by a mining company in the forest’s Sunset Roadless Area on Tuesday, June 16. (Chad Reich, Special to The Colorado Sun)

Levi Broyles, the Paonia District Ranger with the Grand Mesa, Uncompahgre and Gunnison National Forests, said he was unable to comment, citing the ongoing litigation.

Both the land agency and the mining company have until Monday to respond to the U.S. District Court order overturning the North Fork Exception and requiring the Forest Service to begin its environmental review anew. 

Robin Cooley, an attorney with Earthjustice who has shepherded the conservation group’s lawsuits and appeals, pointed to arguments raised by Mountain Coal in its appeal. The company told the appeals court it would be unable to build roads to support the mine without the North Fork Exception, Cooley said. 

“Mountain Coal’s right to construct roads to mine coal is entirely dependent on the North Fork Exception, which was invalidated by the 10th Circuit,” Cooley said. “Because the North Fork Exception is gone, Mountain Coal has no right to bulldoze roads through roadless forest.  Mountain Coal recognized this fact when it was trying to persuade the 10th Circuit not to vacate the North Fork Exception, but now that it doesn’t suit their needs, they are saying the exact opposite.”

Jason Blevins

The Colorado Sun — Email: Twitter: @jasonblevins