No Valid Existing Rights for South Fork Coal Company

ABRA—together with the West Virginia Highlands Conservancy and Appalachian Voices—has been deeply involved in exposing and challenging an illegal coal haul road used by South Fork Coal Company in the Monongahela National Forest. After these groups filed formal complaints last year, the Office of Surface Mining Reclamation and Enforcement (OSMRE) in January briefly shut down the haul road pending proof of the company’s legal right to operate there. Federal law prohibits surface coal mining in national forests without “valid existing rights” established before 1977. South Fork Coal had claimed the road stayed off federal land when obtaining its state permit.

ABRA’s pressure paid off when OSMRE ordered a halt to coal trucks on “Haulroad #2,” protecting public land and waterways—albeit temporarily. Behind closed doors, however, regulators quietly reversed course. In late January, a Department of the Interior appeals board granted the company’s request to resume hauling, without notifying the public or the conservation groups who spurred enforcement.

ABRA’s attorney Andrew Young called it “a textbook example of regulatory capture,” vowing “we won’t let this stand.” Indeed, ABRA and allies swiftly pivoted to the next phase: ensuring a rigorous Valid Existing Rights (VER) determination process. OSMRE is now formally considering whether South Fork Coal had pre-1977 rights to use the 1.2-mile Forest Service road, and the public comment period is open until April 21, 2025.

You can view the official Federal Register notice for instructions on commenting at this link. Or easily submit a comment through this action alert.

ABRA encourages everyone to voice their concerns. Our team’s Freedom of Information Act (FOIA) efforts over the past two years have unearthed critical records about this haul road—from the lack of proper permits to correspondence revealing agency missteps—laying the groundwork to challenge any adverse decision. We’ve built a strong case demonstrating that South Fork Coal does not have valid existing rights, and we won’t hesitate to use this evidence. Regional media are taking note as well. The Charleston Gazette-Mail and others have highlighted South Fork Coal’s long history of violations, and conservation groups (including many ABRA partners) have active lawsuits over the mine’s water pollution and endangered species harm. With broad public support and a solid factual record, ABRA is prepared to ensure OSMRE upholds the law and keeps illegal coal trucks out of our national forest.

(For more background, see Appalachian Voices’ detailed coverage and WVHC’s press release on the haul road issue. Here is a link to ABRA’s information page on Coal Mining in the South Fork of Cherry River Watershed)

Submit a Comment on the VER Determination

A central part of ABRA’s mission is to facilitate informed public review and oversight to ensure that agencies tasked with environmental protection uphold responsibilities. This is impossible without access to critical information. Can you chip in to support our work?