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Cheat Canyon Litigation Settlement is Approved by West Virginia Court
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by Paul Wilson (WV Chapter Chair) and Erin Chalmers (Sierra Club Environmental Law Program) | 2007

This is BIG! We got a court-approved settlement that is as good if not better than a federally approved Habitat Conservation Plan

For the past two months, the West Virginia Sierra Club, along with our co-Plaintiffs, Friends of the Blackwater and Cheat Lake Environment and Recreation Association, have been in court-ordered negotiations with Allegheny Wood Products Inc. over our lawsuit on AWP logging operations in the Cheat Canyon.  These logging operations have put at risk two sensitive species: the endangered Indiana bat, and the Cheat 3-toothed snail.
 
As many of you know the Cheat River Canyon is a spectacular  canyon that provides outstanding recreational opportunities and wildlife habitat. The stretch of canyon at issue in this case had long been owned by a local utility, which allowed public access for hunting, fishing, and other recreation; however, Allegheny Wood Products (AWP) bought the land, closed the area to public access and began logging operations.

In 2005 the Sierra Club and its allies, represented by attorneys Joshua Barrett, of West Virginia, and Eric Glitzenstein, of Meyers Glitzenstein & Crystal in Washington D.C., filed a lawsuit claiming that AWP's logging activities would harm the Indiana bat and the Cheat Canyon snail in violation of section 9 of the Endangered Species Act, which prohibits the unauthorized "take" of endangered species. 16 U.S.C. § 1538(a), 50 C.F.R. § 17.31 (2003) (extending protection to threatened species). The primary goal of the litigation was to force AWP to protect the Indiana bat and the Cheat snail, potentially by forcing the company to prepare a "habitat conservation plan" that would require mitigation measures for their logging activities.

The lawsuit was scheduled for trial in November 2006, but the court ordered the parties to engage in settlement talks before the trial. As part of those settlement discussions, AWP agreed not to begin logging for that season until after the case settled. AWP had previously logged one tract of its property and had started logging a second tract, but had not begun any logging on a third tract, which contains most of the important snail habitat. After settlement discussions proved productive, the parties moved to vacate the trial date and began trading settlement offers, culminating in a successful proposal that was formally approved by the court on February 7th.

The settlement will ensure that the Indiana bat and Cheat snail are adequately protected while still allowing for logging to occur on much of AWP's property. The agreement will protect the Indiana bat by restricting logging and road building on Allegheny's property so that disturbance of the bats is minimized. First, under the settlement AWP is prohibited from logging trees in the spring and fall and from undertaking any road construction in the fall, which are times when the bats are most active near their caves. The proposed agreement will also require that AWP log in a way that leaves a mixed-age forest in order to provide potential roosting habitat and food for bats. AWP also must leave all shagbark hickory trees, which serve as summer roosts for the bat, and must leave 200-foot buffers around any Indiana bat maternity colonies that are discovered.
 
The settlement also prohibits AWP from conducting any logging or related activities in known occupied snail habitat, potential snail habitat and buffer areas that are delineated under the agreement. The agreement specifically sets aside seven "Cheat snail preserves" on a portion of AWP's property and also creates a committee of experts that will develop criteria to be used in delineating other snail habitat on another portion of AWP's property. Allegheny Wood Products will be allowed to commence logging operations on a third tract of its land after an AWP representative walks the land and, after conferring with the West Virginia Department of Natural Resources, and then delineates any additional known, occupied snail habitat in that section. Allegheny will not cut timber within 150-foot buffer around any newly-found snail habitat.

Under the settlement, we are responsible for naming some biologists to the "committee of experts" as well as to designate a "coordinator" from our side to assist in meeting the goals of the settlement.  Duane Nichols, a Sierra Club member, a resident of Cheat Canyon and the Executive Director of Cheat Lake Environment and Recreation Association, is our designated Coordinator and has already met with AWP's designated coordinator to walk snail habitat in the second logging area.
 
Under the settlement, Allegheny must cover all costs incurred in connection with hiring experts to do the snail delineations, but the Sierra Club and its co-plaintiffs have agreed to make "good faith efforts . . . to seek alternative funding for at least half of the costs incurred by the team of experts."   We have already discussed how we will raise some funds to support this important settlement, and we hope to reach out to other conservation groups in West Virginia to build more public support for a successful implementation of the settlement  
agreement.
 
This settlement represents a victory for protection of two imperiled species and essentially achieves as good a result as we could have achieved through litigation. If we had won the lawsuit, the end result would have been an application by AWP to the U.S. Fish & Wildlife Service for approval of a Habitat Conservation Plan, which would have taken considerable time to develop and would not necessarily ensure any better protection for the species.  However, this settlement immediately creates a series of reserves and a scientific process for protecting the most important habitat for the Cheat snail.

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