Lawsuit launched to protect endangered West Virginia species from coal hauling

April 25, 2023

Meg Townsend, Center for Biological Diversity, (971) 717-6409,
Larry Thomas, West Virginia Highlands Conservancy, (540) 383-3087,
Willie Dodson, Appalachian Voices, (276) 679-1691,
Jessica King, Sierra Club, (317) 509-0810,
Chad Cordell, Kanawha Forest Coalition, (681) 214-0906,

A brightly colored fish hovers over a sunlit, rocky creek bottom in clear, shallow water.water

A lawsuit launched to protect endangered candy darters also seeks protection for the fresh water streams they inhabit.
Photo courtesy of Todd Crail, University of Toledo

RICHWOOD, W.Va.— Conservation groups notified the U.S. Forest Service today they intended to sue over the agency’s failure to protect endangered species from the harmful effects of coal hauling in the Monongahela National Forest.

Today’s notice asserts that the Forest Service violated the Endangered Species Act by allowing hauling of coal above the South Fork Cherry River without ensuring that it won’t harm endangered species like candy darters. Coal hauling can also potentially harm Virginia big-eared bats, northern long-eared bats, Indiana bats, and several freshwater mussels found downstream.

“It’s shameful that the Forest Service cut corners at the expense of endangered species like the gorgeous little candy darter,” said Meg Townsend, senior freshwater attorney at the Center for Biological Diversity. “Candy darters are already on the precipice of extinction, and they can’t take any more harm from coal mining. The Forest Service needs to immediately rescind the permit allowing this disastrous coal hauling.”

The endangered candy darter is a small freshwater fish that lives in the South Fork Cherry River and Laurel Creek — two stronghold streams for the species. These streams are designated as critical habitat by the U.S. Fish and Wildlife Service, meaning any harm to the streams is likely to harm the fish.

The Forest Service’s 2021 permit authorizes 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 a road named FS 249, which runs on steep slopes above the South Fork Cherry and Laurel Creek. These activities are likely to harm candy darters in the South Fork Cherry by causing sedimentation and polluting the river.

The Forest Service road will be closed to the public for the duration of the mine’s operations.

The company was already cited for violations leading to excess sedimentation in March and April 2022, a time of year when candy darters are spawning. Along with sedimentation, coal hauling could degrade the Upper Gauley watershed with coal dust from loaded coal trucks.

“The West Virginia Highlands Conservancy has a 55-year history of working in partnership with Monongahela National Forest to preserve the natural environment in the Central Appalachian Highlands, but in this case, our Forest Service partners have erred in permitting a coal haul road on National Forest land without environmental review,” said Larry Thomas, president of the West Virginia Highlands Conservancy. “The Forest Service failed to consider that converting a National Forest road to a heavy-use coal haul road would have direct environmental impacts and would also allow expansion of surface mining in a high-elevation remnant red spruce ecosystem that supports the endangered candy darter, native brook trout, and other at-risk species. We hope that the Forest Service will recognize this error and comply with the review requirements.”

In addition to the candy darter, the three endangered bat species all have roosting and foraging habitat around the road that is likely to be harmed by the activities authorized by the permit, and five endangered freshwater mussels live downstream in the Gauley River. Several streams that feed into Gauley River — including the Cherry River — are designated by the West Virginia Department of Natural Resources as high-quality mussel streams. Though not currently federally listed, eastern hellbender salamanders also live in the Cherry River and will likely be harmed by construction and coal hauling.

“In a region full of remarkable natural features, the headwaters of the South Fork Cherry River are particularly exceptional,” said Willie Dodson, Central Appalachian field coordinator for Appalachian Voices. “It is deeply disappointing that the Forest Service and the Fish and Wildlife Service have enabled South Fork Coal Company’s destructive practices and disregard for this special area. We are hopeful that these agencies will act quickly to address our concerns and protect the unique ecological balance of the South Fork Cherry River and the high Allegheny ridges that surround it.”

“The laws and regulations meant to protect our water quality and critical wildlife habitat are pitifully inadequate to begin with, which is obvious to anyone who’s flown over West Virginia’s scarred and fractured landscape, and those regulations become entirely ineffective when the agencies tasked with enforcing them fail to do so,” said Chad Cordell with Kanawha Forest Coalition. “In this case, the Forest Service rubber-stamped a permit allowing a coal company to convert a public forest-service road into a strip mine haul road, prioritizing short-term coal company profits over the continued existence of an endangered species. The only appropriate course of action is for the Forest Service to protect the critical habitat of the endangered candy darter by immediately rescinding South Fork Coal Company’s haul road permit.”

“Witnessing the highest elevation strip mine in the state, in the middle of rare red spruce forest, and so close to Cranberry Glades Botanical Area is the ultimate proof to me that nothing is sacred in this state as long as there is coal under it,” said Sierra Club’s Senior Organizing Representative Alex Cole. “Candy darters are one of many endangered species threatened by fossil fuel extraction and transportation, and the Forest Service’s failure to protect endangered species from the harmful effects of coal hauling is unacceptable“The harm caused by coal hauling in the Monongahela National Forest is a stark reminder that we cannot continue to advance fossil fuels at the expense of our environment, especially not on land we as citizens collectively own. We must prioritize the protection of our planet and its biodiversity, and we hope the Forest Service will take immediate action to remedy this mistake.”

The groups who signed the notice with the center are the Sierra Club, West Virginia Highlands Conservancy, Appalachian Voices, Appalachian Mountain Advocates, Greenbrier River Watershed Association and Kanawha Forest Coalition.

If the Forest Service doesn’t remediate the violation, the groups will follow the notice, which is required by the Endangered Species Act, with a lawsuit once 60 days have passed.