Notice of Appeal of the Ohio Division of Mines and Reclamations Buckeye Forest Council and Ohio University Lands Unsuitable Petition Decision of November 30, 1998 for Dysart Woods
December 30, 1998
Appellants: Dysart Defenders and environmentalist Chad Kister
P.O. Box 31, Athens, Ohio 45701; (740)-594-7287
-vs-
Appellee: Chief, Ohio Division of Mines and Reclamations
 
Prepared by Chad Kister, Coordinator, Dysart Defenders
Expert witness: Ohio University Forest Ecology Professor Brian McCarthy
 

As per 1513.13 of the Ohio Revised Code, this is an official notice of appeal for the Ohio Division of Mines and Reclamations Decision 11-30-98 on the Buckeye Forest Council and Ohio University Lands Unsuitable Petitions.  As required in ORC section 1513.13 (A)(1), this notice contains a copy of the decision, and the grounds upon which this appeal is based. 
 

Table of Contents  
page 
3 Standing for Appeal 
12 Grounds for the Appeal 
13 Dysart Woods is among the most endangered ecosystem in Ohio 
15 The ODNR decision of March 2, 1988 should not be violated 
15 All forms of underground coal mining should have been declared unsuitable for mining 
19 OU Forest Ecology Professor Brian McCarthy (and expert witness for this appeal) 
20 Dr. Richard Parsek finds Dysart is at high risk from underground mining 
22 Ohio Valley Coal Company's scientists say Dysart Woods geology is fragile 
23 Geological faults exist near Dysart Woods 
24 The size of the buffer zone should not be cut seven times 
32 The ODMR does not have adequate information 
32 The Big Picture 
33 Relief requested in this appeal 
33 Signature, by Chad Kister 

Plus 61 pages of Appendix as follows: 

Appendix A: Watershed buffer zone and supporting reasoning by Dr. Moid Ahmed 
Appendix B: ODNR Press Release March 2, 1988 
Appendix C: Complaint by Ray Southland about dewatered well 
Appendix D: map of room and pillar mining under Southland's property 
Appendix E: ODMR Lands Unsuitable Petition Decision of 11-30-98 
Appendix F and G: ODMR photos of subsidence from room and pillar mining 
 

Standing for Appeal  

 Statement by Chad Kister, appellant: "I grew up camping and hiking in the unglaciated forest of Ohio.  I am at home in the land of my ancestors who settled two centuries earlier in southeast Ohio.  Dysart Woods is the last remnant of the great old-growth forest that once covered the hills of unglaciated Ohio.  The Book The Trees by Conrad Richter has always been dear to my grandparents, aunts and uncles.  The book reads, 

   "Down in Pennsylvania, you could tell by the light.  When a faint white drifted through the dark forest wall ahead, you knew you were getting to the top of a hill, or an open place ... but away back here across the Ohio, it had no fields.  You tramped day long and when you looked ahead, the woods were dark as an hour or a day ago," wrote Conrad Richter in his historical fiction story, The Trees about a pioneering family as they ventured into Ohio a little more than two centuries ago. 

  ...The family rounded a high ridge "For a moment, Sayward reckoned that her father had fetched them unbeknownst to the western ocean and what lay beneath was the late sun glittering on green-black water.  Then she saw that what they looked down on was a dark, illimitable expanse of wilderness.   It was a sea of solid tree tops broken only by some gash where deep beneath the foliage an unknown stream made its way. As far as the eye could reach, this lonely forest sea rolled  on and on till its faint blue billows broke against an incredible distant horizon." 

 Ohio was once 95 percent forested  with ancient Oaks, Hickory, Sugar Maple, Beech, Sycamore, Elm, Tulip and Buckeye up to a millennia old, 12 feet in diameter and more than 150 feet high.  The canopy was entirely connected to form a forest ecosystem hundreds of miles across.  Ohio was the heart of the eastern heartwood forest.  It is among the most diverse of forests in the United States. 

 What is left has been cut over many times, criss-crossed with toxic-spewing utility lines, roads, suburban sprawl, parking lots, malls, chemical golf courses, toxic dumps, leaking oil and gas wells and monoculture chemical farms.  Public forests represent only 4 percent of Ohio. 

 The giant trees of Dysart Woods are magical and wise, uplifting those who choose to visit them with wisdom and understanding like no other place I have been in Ohio.  Many are more than four feet in diameter and 150 feet tall.  The majestic White Oaks, Sugar Maple, Hickory and Beech stand as living weathervanes to the health of the environment upon which we all depend.  They are the last place where one can come and see the ancient forest that once covered all of Ohio. 

 I have been to Dysart Woods more than a hundred times.  As a Graduate Student in Environmental Studies, it is critical to my thesis which is about the need to protect Dysart Woods, the last benchmark of our southeast Ohio forest.  Dysart is a critical resource because it is the last.  We have destroyed 99.996 percent of the original ancient forest in Ohio.  Nowhere has a 400 year old tree grown back since Ohio was founded, and in very few places are forests allowed to regrow to old-growth. 

 Further, as I have studied in Forest Ecology, it takes far longer than the 400-500 year old life spans of these trees to recreate an old-growth forest.  The structure of second-growth forests is impoverished so as to withstand wind and lightning.  The old-growth trees at Dysart Woods are often 80 feet to the first branch, showing the extended structure of an old-growth forest that we do not find in second-growth forests.  It is the conclusion of my vast research for my Masters Thesis that Dysart Woods must be saved in perpetuity by protecting the full watershed buffer zone from all types of coal mining. 

 My goal is to restore a forest reserve in southeast Ohio to increase the tourism economy and the ecological integrity of our region, which is experiencing a decline of forest interior species such as the Indiana Bat and the Cerulean Warbler.  These species also need mature forest, such as the finest left in unglaciated Ohio, Dysart Woods.  Dysart Woods is a critical and irreplaceable benchmark that can no longer be a benchmark if mining takes place.  It would be a study area for the affects of mining on forests, but not for the study of undisturbed old-growth forests, which is what makes Dysart Woods so unique. 

 I plan to continue to go back to Dysart Woods regularly as a critical reserve to maintain my spiritual, intellectual, educational and ecological well being.  It is of the utmost importance for me to save Dysart Woods, and I have helped to organize dozens of rallies, events and conferences in the effort to save this magnificent forest from coal mining.  I helped to organize and participated in the full 75-mile walk from Ohio University to the Statehouse in Columbus.  We stopped at Dysart Woods as the last benchmark to show what Ohio was like in the 850 mile Walk for a Green Ohio in 1994 that I coordinated and participated in.  I walked with hundreds of others from Cincinnati to Toledo to Cleveland, Youngstown, Dysart Woods, Marietta, Coolville, Athens and then to the Statehouse in Columbus, where Native American drums greeted us in support.  I have seen the state of Ohio first hand in the fullest of ways, and I know how unique and how valuable Dysart Woods is.  I argue it is the most valuable resource Ohio owns, worth far more than all the coal reserves in the state, let along the relatively tiny 4,170 acre watershed buffer zone that I am requesting be protected from mining. 

 I would personally be adversely affected if mining is permitted in the buffer zone of Dysart Woods as given in Appendix A, meeting the requirement of ORC section 1513.13 (A) (1).  I regularly spend much time in Dysart Woods to experience and study an old-growth forest that has been unaffected by humans to the maximum extend possible in today's landscape and air pollution.  To allow coal mining within the buffer zone that scientists say could affect the forest would eliminate this value for this priceless forest.  This is the value that makes Dysart Woods so unique and so important to preserve.  This is the value that makes Dysart Woods a spiritual Mecca for me and many others, including my advisor Ted Bernard. 

 To further show my standing, the following is my testimony to the ODMR at their public hearing October 9 for this Lands Unsuitable Petition.  Board members can also hear the statement from the ODMR's tape of the proceedings which the ODMR has in its possession. 
Dysart Woods Public Hearing. Speech by Chad Kister,October 9, 1998: 

 I am going to speak now for Dysart Woods and for the Buckeye Forest Council's Lands Unsuitable for mining Petition for the watershed buffer zone of Dysart Woods.  The Buckeye Forest Council's Lands Unsuitable Petition should be passed.  Ohio University's cutting of this buffer zone by seven times is unscientific and wrong.  I will also dispute some of the coal industry's claims and show that democracy and truth are on the side of the Lands Unsuitable Petition submitted by the Buckeye Forest Council. 

 In a study by Reed Noss of the United States Department of the Interior, "An important contextual consideration for conservation on a state scale is the entire geographical range of a community or species.  If the outcrop community occurs only in Pennsylvania but the old growth forest was widespread across the eastern United States, the order of priority for conservation would be the old growth forest first.  The Nature Conservancy recognizes the problem of scale by giving higher priority to global than state rankings.  However, not all state governments recignize trends beyond their boundaries and may be extremely provincial in their decisions.  In many states, characteristic regional vegetation types have suffered massive declines, yet, agencies do not consider them of high priority for protection.  Instead, agencies often focus on the curiosities, such as relict or peripheral community types that were never common.  For example, the natural areas program of the Ohio Department of Natural Resources devotes more attention to bogs, fens and other Pleistocene relics that can be managed conveniently in small 
reserves as living museums than to the forest ecosystems that once dominated the state.... only some small patches of old growth forest remain in Ohio." 

 Ohio was dominated by old growth forest that we have a little bit left of at Dysart.  We have destroyed 99.996 percent of the original ancient forest that once covered Ohio.  We have but .004 percent left and Dysart Woods is the only significant tract of its type of mixed mesophytic forest.  It is all we've got.  This is the only place where we can go to and see what forests once were like in Ohio.  This is one of the only places left in Ohio with 100 percent native species -- species that were always here.  It is a place in balance.  It is a forest that must be preserved. 

 Dysart Woods was protected by the long and tireless campaigning of a St. Clairsville native here, who fought long and hard hours.  John Kinder raised money for the Nature Conservancy in the early 1960s to buy Dysart Woods in 1962, and save it from loging.  In 1966 Ohio University acquired Dysart Woods.  The first coal mining threat came in 1970.  And the watershed buffer zone that we have here today in the Buckeye Forest Council's petition was first presented back in 1970.  So the claims that this coal company is losing billions of dollars in takings is hogwash.  It is wrong.  It is ridiculous.  They have known about this buffer zone for almost 30 years.  And the coal company just acquired the coal rights in 1988.  And yet now their attorney here is claiming and lying that Ohio Valley Coal Company had money invested before 1977.  That again is hogwash and that is wrong. 

 In 1977, the Surface Mine Reclamation Act was instituted because of the widespread concerns nationwide over the destruction and ravages of the coal industry.  And they have a provision for the protection of lands from coal mining and that is the lands unsuitable petition process.  Dysart Woods meets the letter of the law of this process better than any petition the state has received yet, and two have been granted successful. And I argue better than any other place in the state. 

 And I quote right from the law, that states, Ohio Revised Code Section 1513.02 (B) authorizes Lisa Morris, Chief of the Ohio Division of Mines and Reclamations to "designate as unsuitable for coal mining natural areas maintained on the registry of natural areas of the department of natural resources...publicly owned or dedicated parks and other areas of unique and irreplaceable natural beauty or condition, or areas within specified distances of a ... public park.  Such a designation may include land adjacent to the perimeters of such areas that may be necessary to protect their integrity."  Clearly, the watershed is critical to protecting the integrity of Dysart Woods.  The Buckeye Forest Council's legally delineated watershed buffer zone as has been known since 1970 by the coal company and the Division of Mines and Reclamations must be passed in full. 

 And in fact the Ohio Division of Mines and Reclamation in 1988 called for the preservation of this very buffer zone.  And I quote right from the chief of the Ohio Division of Natural Resources from a press release issue on March 2 of 1988, "as director of the Department of Natural Resources I want to make sure that nothing is done to harm Dysart Woods, a precious 
part of Ohio's natural heritage." 

 Then-Chief of the Ohio Division of Mines and Reclamations Tim Dieringer called for the protection of the entire watershed buffer zone in 1988.  This watershed buffer zone is effectively what the Buckeye Forest Council has submitted and that the ODMR is considering today.  So the ODMR has already asked for this and must uphold this decision that was made in 1988 when there was massive concern for this save buffer zone, and this same forest and protect the full watershed. 
 

 The comments made by the anti-environmental contingent that has been paid by Ohio Valley Coal Company, who have claimed that in 200 years there aren't going to be any old trees left because these trees are dying are part of their misinterpretation of fact; the lies that Ohio Valley Coal Company is using to destroy Dysart Woods.  Because in fact there are 200 and 300 year old trees that will replace the 400 and 500 year old trees as they die of old age.  This is a continual forest.  Old growth forest perpetuates itself.  The 200 year old trees will replace the 400 year old trees in 200 years.  But the lies that you hear from the coal company -- the misinterpretation of fact -- that is what is blinding the process and skewing the truth. 

 Lastly, the truth.  We have irrefutable scientific evidence that coal mining can affect the hydrology that can affect forest.  We have all kinds of documentation as has been submitted in both the Buckeye Forest Council and Ohio University's Lands Unsuitable Petitions showing scientific facts that longwall mining within the buffer zone could destroy Dysart Woods. 

 And, for democracy.  There have been more than 8,000 people in the state who have submitted petitions and letters to the Ohio Division of Mines and Reclamations calling for the preservation of this watershed buffer zone.  The people know the truth, and the people have spoken in large numbers.  And I am going to submit almost 800 more signatures today on top of the more than 8,000 letters and petitions that have already been submitted to the Ohio Division of Mines and Reclamations, calling for the passage of the Buckeye Forest Council's Lands Unsuitable Petition to protect Dysart Woods, a critical resource in perpetuity. 

  Grounds for the appeal  
As required by Ohio Revised Code (ORC) Section 1513.073, as amended in General Assembly: 121;  Bill Number: Amended. Sub. S.B. 162;  Effective Date: 10/29/95 

 (A)(1) Upon petition pursuant to division (B) of this section, the chief of the division of 
mines and reclamation shall designate an area as unsuitable for all or certain types of 
coal mining operations if the chief determines that reclamation pursuant to the 
requirements of this chapter is not technologically and economically feasible. 

 (2) Upon petition pursuant to division (B) of this section, a surface area may be 
designated unsuitable for all or certain types of coal mining operations if the operations 
will: 

 (a) Be incompatible with existing state or local land use plans or programs; 

 (b) Affect fragile or historic lands in which the operations could result in significant 
damage to important historic, cultural, scientific, and esthetic values and natural 
systems; 

 (c) Affect renewable resource lands in which the operations could result in a substantial 
loss or reduction of long-range productivity of water supply or of food or fiber 
products, or aquifers and aquifer recharge areas; 
 Because no coal company can replace an old-growth forest or a 400 year old tree, reclamation is not technologically or economically feasible, violating ORC section 1513.073 (A) (1).  Thus, any operations that could result in significant damage to important historic, cultural, scientific and esthetic values and natural systems must be prohibited in the Lands Unsuitable Petition decision.  Scientific documentation in this report and expert witness Ohio University Forest Ecology Professor Brian McCarthy will show in this appeal that the ODMR decision to allow room and pillar mining and longwall mining within the watershed buffer zone of Dysart Woods could significantly affect the old-growth forest, thus violating section 1513.073 (A) (2) (b) as stated above.  Further, the Nov. 30 ODMR LUP decision of Dysart Woods violates section 1513.073 (A) (2) (a) in that it is incompatible with the public designated use of Dysart Woods as a Nature Preserve.  Portions of the Dysart Woods Nature Preserve are not even protected from any kind of mining. 

Relief  Sought  
 The watershed buffer zone as delineated by the completed Buckeye Forest Council Lands Unsuitable Petition appeal of Spring, 1998, and provided in Appendix A of this appeal, must be declared unsuitable to all types of mining. 
    Further I would like to request a hearing before the Review Commission and a site visit by the commission.  I would also like to request the temporary relief of prohibiting all mining within the buffer zone provided in Appendix A of this appeal until this appeal is resolved. 
 

Dysart Woods is the among the most endangered ecosystem in Ohio  
  Reed Noss conducted an impressive study of our nation's ecosystems for the United States Department of Interior 1995 Biological Survey.  Noss concluded that Ohio's state management was skewed toward preserving a few Pleistocene relics while ignoring the old-growth forest that once covered our state.  Because Dysart Woods is a National Natural Landmark, it is particularly important that it be protected, which means protecting the watershed buffer zone as outlined by Moyd Ahmed and "well known" by the Ohio Division of Mines and Reclamations.  A copy of Ahmed's study and the watershed buffer zone map is enclosed (appendix A). 

 The Department of Interior report reads, "An important contextual consideration for conservation on a state scale is the entire geographic range of a community or species.  The Nature Conservancy (Master 1991a) recognizes the problem of scale by giving higher priority to global than state rankings.  However, not all state governments recognize trends beyond their boundaries and may be extremely provincial in their decisions, yet, agencies do not consider them of higher priority for protection.  Instead, agencies often focus on the curiosities, such as relict or peripheral community types that were never common. 

  For example, the natural-areas program of the Ohio Department of Natural Resources devotes more attention to bogs, fens, and other Pleistocene relics that can be managed conveniently in small reserves as living museums than to the forest ecosystems that once dominated the state (R. Noss and personal observance).  Forest area in Ohio recently increased to about twice its value in 1939-42 but is still only 27 percent of the state, whereas it was more than 95 percent before European settlement (Good 1979; King 1990).  The secondary forests, mostly in the Appalachian Pleateau of Ohio, are heavily fragmented by roads, gas pipelines, unreclaimed strip mines, clear-cuts, and other intrusions.  Like most second-growth forests, they are structurally impoverished compared to old-growth forests.  Only some small patches of old-growth forest remain in Ohio (Good 1979)." 

 And because Dysart Woods is the only significant mixed mesophytic old-growth forest in Ohio, it is of even greater importance to save. 

The Ohio Division of Natural Resources decision of March 2, 1988 should not be violated 
 After more than 200 people attended a public hearing about North American Coal Company's proposal to longwall mine near Dysart Woods, the ODMR and the ODNR requested that the company not mine within the 4,170 acre watershed buffer zone of the ancient forest, and issued a press release stating the same (see Appendix B).  Note the strong language stating that Dysart Woods must not be harmed.  The ODNR should not backtrack on its past decisions. 

All forms of underground coal mining should have been declared unsuitable for mining 
 On page two of the ODMR's LUP decision, the DMR decided under the third bullet, "Based upon current data and review the DMR finds that such mining can be controlled within a 1500 foot buffer zone ... so as to prevent subsidence tot he overlying strata.  There is clear and irrefutable evidence that standard 50 percent extraction room and pillar mining does subside the overlying strata, particularly since the ODMR did not specify surface subsidence, but specified the overlying strata. 

 Ohio Valley Coal Co. admitted their room and pillar mining of #8 seam caused near-surface dewatering and pollution.  In a letter written to the ODMR and signed by David L. Bartsch, Project Engineer for The Ohio Valley Coal Company, Bartsch states, 

 "As a result of a squeeze that occurred within the room and pillar portion of this permit, in a small area several wells were dewatered.  The wells are being monitored at the present time to determine how long before the water returns and at what level.  No pre-subsidence samples were recorded from the wells.  One well has collapsed and will have to be re-drilled, in order to make it useable,  Two wells have been covered with dirt and are not available for sampling.  One well has water within 25 ft of the surface. Another well that was discolored during the incident now has clear water again.  Two years is generally thought to be the amount of time required for the ground water sources to become viable after being dewatered.  The incident (squeeze) occurred about two years ago. 

 OU Professor Moid Ahmed found that room and pillar mining caused dewatering of surface wells.  "Room-and-pillar mining in Section 18 of Washington Township, four miles south of Centerville, dewatered five wells in March, 1987 which have not yet recovered.  Similar situations may be repeated ... if room and pillar mining is allowed.  This may cause serious dewatering at the Dysart Wood.  Because of the dip of the Pitsburgh #8 seam, Ahmed showed how room and pillar mining could cause serious surface dewatering because it would increase the subsurface flow of water toward lower levels, harming all areas above it. 

 "Geological and hydrological evidence indicates that the room-and-pillar or longwall mining in the buffer zone around Dysart Woods may lower the water levels and affect the 400-year-old trees.  The model studies reinforce the geological and hydrological analysis.  The model further indicates that the existing buffer zone may not be adequate to protect the dewatering of the Dysart Woods... (Ahmed, 1988) (Appendix A) 

 Ray Southwood of 43933 Gelncoe-Whitney Road, about three miles from Dysart Woods, was undermined in 1924 with room and pillar mining of the Pittsburgh number 8 coal seam.  Over the past few years, longwall mining has come within a mile and a half of the area.  Southwood's well – his only water supply – was suddenly dewatered in September, 1998.  The water had not returned as of December 29, 1998. 

 Room and pillar mining clearly can severely affect the surface hydrology of the Dysart Woods area, refuting the Ohio Division of Mines and Reclamations claim in the LUP decision that room and pillar mining would not affect Dysart Woods. 

 Southwood filed a complaint with the ODMR on September 11 (Appendix C).  A map of the Delura room and pillar mine in the section 5 under Southwood's home is provided in Appendix D).  ODMR investigator Mary Ann Borch is studying the case.  The close proximity of this situation to Dysart Woods and the fact that it was undermined with room and pillar mining of the #8 coal seam indicates that Dysart Woods could be affected by this type of mining.  The ODMR's decision to allow this mining would only delay the affects so Ohio Valley Coal Company's political henchmen will be out of office by the time Ohio's last ancient forest falls. 

 Another well about 2,000 feet farther from the longwall mining panel, that was undermined with room and pillar mining was dewatered near Southwood's house.  That well was owned by Ron Williams. 

 USGS Water-Resources Ingestigation Report 95-4025, 1995 found that underground coal mining caused subsidence of the Right Fork of Miller Creek, Utah.  "Fractures stemming from subsidence-related deformation drained perched aquifers and reduce discharge from three springs above the mined area." 

 Closer to Dysart Woods, in West Virginia, studies published in USGS Water-Supply Paper 2384 (1993) show that underground mining causes wells to fluctuate 100 feet, drained streams, and caused surface subsidence.  The report reads, "Data are presented on undermined basins, flow duration, streams draining mined areas, specific conductance, groundwater levels, mine collapses, and surface subsidence.  The study reveals that at mines above major drainage, water levels in some wells can fluctuate as much as 100 feet causing higher base flows or increased leakage into mines." 

 Ohio University Professor Emeritus of Botany Warren Wistendahl, who has studied Dysart Woods for many decades, found that the ancient forest likely depends upon percehed aquifers which he warned could be affected by room-and-pillar or longwall coal mining.  The U.S. Geological Service reports confirm his fears, and show why this appeal must be granted for the relief of protecting of the entire watershed buffer zone from all types of mining. 

OU Forest Ecology Professor Brian McCarthy  
 Professor Brian McCarthy testified to the ODMR at the hearing Oct. 9, "These forests have become central to many of the academic theories of the science of ecology.  To both the scientist studying basic ecology and the applied forest manager, these stands represent the only control that we have in a massive landscape scale experiment with the land and its forests.  Any simple experiment requires an experimental treatment and a control, or benchmark against which to compare it.  Old-growth forests are the benchmark for forest management in the region, and they provide long-term data on forest composition, stand dynamics and disturbance histories. 

 "For the conservation biologist, these forests contain certain species, genetic material and habitat found nowhere else in the landscape of Ohio.  As such, these stands are critically important to the preservation of biological diversity.  There are also a variety of nonscientific values.  Dysart Woods, and all old-growth, is a legacy of our past and a part of our natural heritage.  These are the forests that our forefathers came to and where we can bring our children and our grandchildren to teach them about our history.  They should be sources of pride for our future, as well as a link to our past. 

 "Ultimately, there is no group of scientists, miners, agency personnel, or lawyers, that can unequivocally guarantee that subsurface mining will not affect this forest.  No professional in a clear conscience can make such a statement. view any type of subsurface mining under or immediately near Dysart Woods as unacceptable. Long-wall mining often has immediate surface repercussions; room and pillar mining just delays the problem to a future generation, when manmade support structures will ultimately fail. Unfortunately, whether now or in the future, there is no way to remediate any damage that occurs.  One cannot replant a 400-year-old tree or recreate a forest that took thousands of years to develop. 

 "Given the rarity of old-growth in the landscape, the uniqueness of this particular woods to the State of Ohio, the delicate balance of its ecology, and the virtual absence of human disturbance for hundreds of years, the prudent environmentally conscious person would not even consider mining under these woods. 

 "The role of the reasonable person is the underpinnings of our jurisprudence system in this court.  I submit that there is no better time to apply this notion at this time to this case.  The potential for damage is too great  the ability to remediate is nonexistent.  Mining of any type should not be permitted under or near the old-growth sections of Dysart Woods.  It is only logical that a reasonable person would arrive at this conclusion.  This forest is the environmental crown jewel of Ohio's natural areas and should be preserved in perpetuity." 
 
Scientist Dr. Richard Parsek finds seeps, high risk of mining damage to Dysart Woods 
 In a letter dated August 8, 1998, Richard R. Parizek wrote OU attorney David Northrop, "Our field visit to Dysart Woods on Thursday, August 6, 1998 was most informative. Although our walking tour was largely confined to the Red and Blue Trails, at least six groundwater seeps and head of gully wet weather springs were noted on the Blue Trail and seven or eight on the Red Trail. 
 

 "These are significant because they appear at various locations along the hill slopes not just near the main valley bottoms. Some were associated with topographic slope changes, steep V more gentle1 indicating that changes in rock sequences hence contrasts in the permeabilities of bedrock units were impart responsible for the springs observed. 

 "Further, landslide-scars were especially welt developed on the Red Trail. Other small crescent shaped topographic benches noted on the Blue Trail were very likely landslide scars as well. These were rather subtle, but because they often had a shallow bowl shaped feature above, and minor seeps below, these justify examination as potential landslides! None appeared to be active and some benches had old growth trees rooted on them indicating that they predated these trees (>200 to 400 years ago). They may well have formed as early as the time of glaciation to the north in Ohio, Indiana, etc. under periglacial climatic conditions. 

 "These are all important observations because many of the old growth forest trees were located in close proximity to seeps, above, below and adjacent to seeps indicating that they wore in equilibrium with available soil and groundwater. Seeps high on the hill slopes but with nonseep areas below support the stair step model for shallow groundwater flow. Water not noted as surface runoff below seeps must travel downslope within residual and colluvial soils at or near the bedrock contact. 

 "These shallow groundwater sources are particularly prone to mining influences that cause the redistribution of rock stresses even if this water is never intercepted by underlying mine voids. ... 

 "Clearly, near vertical zones of fracture concentrations delineated by fracture traces (linear surface features less than about a mile in length v lineaments more than a mile in length) are present and abundant within the Dysart Woods region: 3 to 5 zones within a 40 acre parcel are common. These structures enhance fracture permeability of bedrock strata, will account for some of the gullies and seeps noted and facilitate vertical migration of water with or without the presence of underlying mines. These structures are particularly prone to stress readjusiments related to mining hence, are more likely to cause changes in groundwater flow rates, paths, etc." 

 "Changes in groundwater flow paths, the redirection of groundwater to form more concentrated seeps downslope for example, could trigger new landslides and reactivate former slides that appear to be inactive at present. 

 "Deep leakage into mine openings along fracture zones can cause me dying up of seeps and springs, hence a reduction in or loss of available soil moisture. Development of vertical tension fractures associated with mining also can intercept important sources of shallow groundwater, perched groundwater and stormwater runoff." 

Ohio Valley Coal Company's scientists say Dysart geology is fragile 
 Further, Ohio Valley Coal Company's own scientists admitted the fragility of the geological integrity of Dysart Woods.  P Squared Technologies President Paul Craig said that water underneath Dysart Woods travels through fractures.  He also said that "Dysart Woods' underlying rocks are rich in the sandstones, shales and silkstones," at the ODMR public hearing Oct. 9 (page 91). 

 Jeff Holt, an employee at P Squared Technologies (the firm hired by Ohio Valley Coal Company to provide suedo-science to support its mining permits) found that the underlying strata was "brittle," (ODMR public hearing page 97).  Further, he found that the subsurface water was more than twice as shallow as had been reported in the Buckeye Forest Council's Lands Unsuitable Petition.  This would indicate that it is used by trees and the replenish surface water used by the ancient forest.  Holt said that "groundwater is not lost but merely deeper below the surface than before mining." 

 The water usually falls to the depth of the mine, Holt said, in this case about 400 feet down, rendering it totally useless to trees that would be stressed by this loss. 
 The Division of Geological Survey found that "brittle strata (well-cemented limestone and sandstone) have substantially greater fracturing potential then ductile strata...In the caving zone, strata break into different-sized blocks and fall into the space created by the mined seam."  This subsidence should not be allowed anywhere within the watershed buffer zone of Dysart Woods.  Given the brittle strata, the ODMR cannot conclude with any scientific certainly that room and pillar mining would not affect Dysart Woods. 

Geological faults exists near Dysart Woods  
 Faults in the substrata can carry water easier to mined-out areas, greatly increasing the affects of underground mining on surface water.  The Ohio Division of Geological Survey found that "Dysart Woods lies between two sets of linear features shown on Landsat fracture-analysis maps.  These minor linear features follow the general course of Joy Fork (west of Dysart Woods) and Millers Run (east of Dsyart Woods).  If these linear features are indeed fracture traces, then longwall mining within the Dysart Petition area could potentially intersect these fractures and increase permeability along them (ODNR, 6-24-98).  These findings should mandate the protection of the full watershed buffer zone from all types of mining. 

 Ohio Valley Coal Company reports that they hit a fault in previous mining just south of Dysart Woods, adding further credence to this concern. 
 

 The Department of Geological Survey found that "water can be transmitted through this zone in the presence of faults or joints."  With the known faults in the Dysart Woods area, the ODMR LUP decision was arbitrary and capricious in reducing the buffer zone submitted by the Buckeye Forest Council to a sheer linear distance without taking into account the watershed geography and geology. 

The size of the buffer zone should not be cut 7 times 
 The ODNR recognized the watershed buffer zone for Dysart Woods in their Press Release in 1988 (Appendix B).  This should be respected now.  The importance of this full watershed buffer zone is explained by ecologist Marilyn Ortt. 

 "Dysart Woods in Belmont  County is one of the few truly old-growth  remnants left in  the state of  Ohio - some  of the white oaks are probably over 400 years old.  When it was originally  protected by The Nature Conservancy, longwall  mining  was  unknown.   Today,  the  technique  and its effects are all too well known.  This forest perched on the ridge yet  having so many characteristics  of a forest  growing in more moist  soil is obviously dependent  on a steady  source of ground water. 

 "Ask any farmer who  has had long-wall mining pass  under his farm and you  learn the  first effect is  severance of  long-time water movement  in the soil.   I do not  know of a  single spring that  has re-established  itself.   This disruption  of processes under  the  surface of  the ground  is  very long-lasting  if not infinite 

 "No one with knowledge of forest ecology would make the claim that  a  forest  that  has  developed  with  certain  groundwater characteristics for thousands of years (to have 400 year old oaks requires many  years  of  succession  of forest  types  and  tree species) could  possibly  remain in  good  health if  that  water source were removed. 

 "This  is  the  real  issue in  this  case.    Th& effort  at protection  has been made although it is now realized what seemed ironclad at  the time  is not  much protection  at. all  given new mining methods.  Dysart  Woods is totally dependent on  the state permitting system for protection.  Please, do not fail to do what you can to make sure our grandchildren will be able  to walk with the same awe and conviction under these giant trees as we can." 

 The full 4,170 acre watershed buffer zone should be protected from all mining (Appendix A)  Given the removal of 500 acres because of the completion of permit D-0360-7 prior to the BFC's LUP, the full 3,756 acre buffer zone as applied for in the BFC petition should be protected from mining.  But this shows how it is politics, the legal restrictions of who applied first, and not science that is guiding decisions about the fate of our last significant ancient forest in unglaciated Ohio. 

 The Lands Unsuitable Petition decision should be based on the science of where coal mining could significantly impact Dysart Woods.  The ODMR needs to consider the larger matrix in which Dysart Woods is located, and the complex geology that the ODMR admits it does not have enough scientific data to understand.  Scientific data does show that dewatering upstream in a watershed can affect areas downstream. 

 Moyd Ahmed showed in his study of the geology of Dysart Woods how it is critical to protect the watershed to maintain the hydrologic balance of the old-growth forest (Appendix A).  Further, Ohio University Vice President for Administration Gary North and OU's attorney David Northrop both called for the protection of this buffer zone at the ODMR public hearing August 4, 1997.  Their statements follow: 

  A law firm representing Ohio University submitted pages of 
scientifically documented facts showing why mining should not be allowed in the watershed of Dysart Woods to maintain the health of the ancient forest. 
 The comments were submitted to the Ohio Division of Mines and 
Reclamation July 9, within the comment period for Permit D-360-7 that 
threatens Dysart Woods.  They state, "The university objects to the application ... due to the adverse 
effect that longwall mining in the southwest portion of the application 
area may have on the Dysart Woods Laboratory ...  The university has owned 
Dysart Woods since 1966, acquiring them from the Nature Conservancy under 
a commitment to preserve the woods in their natural state in perpetuity. 
Dysart Woods are well known to your department, and much information 
pertaining to that unique natural and environmental resource is available 
to you from the Division of Forestry and Division of Natural Areas and 
Preserves. 

  "The unique value of the woods caused the area to be declared as a 
National Natural Landmark by the United States Department of Interior. 
The woods are thus an irreplaceable and enormously valuable natural area, 
and their loss would represent an environmental tragedy of great 
proportion. 

  "The old growth trees in Dysart Woods, because of their great size 
and age, require a stable and abundant supply of water.  Coal mining, due 
to its effect on the hydrologic balance of the area to be mined and nearby 
lands, presents a very real threat to the well-being of the trees." 

  Ohio University Vice President for Administration spoke against 
more-than four square mile longwall coal mine that encroaches the 
watershed of Dysart Woods at a public hearing in Belmont County held by 
the Ohio Division of Mines and Reclamation August 4. 
 "The number seven permit encroaches on that area designated as a 
buffer zone and particularly the watershed area that could impact the 
future of Dysart Woods.  We are especially concerned with the southwest 
corner of the petition that overlaps the buffer zone, the designated area 
that people working with us have suggested needs to be protected from 
mining in order to protect the water source that feeds these trees," North 
said at the hearing. 

    We are greatly concerned about this continued encroachment. 
Petition 6, now petition 7, possibly a petition 8 to come shortly 
thereafter which would bring mining even closer and possibly under the 
woods.  As we have said on previous occasions, we believe some mutually 
established and agreed to restriction or buffer zone is the most 
appropriate way to protect the woods and the area around the woods. 
 It is important I believe, however, that the woods need to be 
protected and that the best way to do that is to come up with some 
commonly agreed and accepted boundaries around these woods which do assure 
that activity that causes threat or pose danger to the woods will not be 
taken.  It is for that reason we are here to speak to you today.  Mr. 
David Northrop who is special council to Ohio University for Environmental 
Concerns will speak specifically to our concerns of petition 7. 
 Attorney David Northrop said, "Dr. North has spoken eloquentlythat we believe longwall mining in area 7 may harm Dysart Woods.  Dysart 
Woods lies less than a half mile to the South of permit #7 so it is very 
close.  This permit is coming perilously close to Dysart Woods.  Dysart 
Woods  is in our view the crown jewel of Ohio's natural areas and 
preserves.  It should be preserved and protected at all costs." 
 Northrop noted that the more-than thousand page petition only had 
one page on Dysart Woods.  That page, he continued, referred to a 
coal-company financed study that said longwall mining had no affect on 
surface water.  The audience laughed boisterously.  Numerous local farmers 
had just testified to how their streams, springs and surface water dried 
up because of longwall mining.  Northrop noted that the very permit that 
this statement was made in showed how longwall mining had drained a well 
more than 745 feet from the actual mining. 

  Northrop said, "In our view this is a superficial analysis and 
falls woefully short of the kind of information the division needs to 
fully answer the impact the mine may have on Dysart Woods.  The applicant 
bears the burden.  Not Ohio University.  Not the Division of Mines and 
Reclamation.  It is Ohio Valley Coal who nears the burden as a matter of 
law to demonstrate they are eligible for the permit.  To do so they need 
to show there is no impacts to the Dysart Woods.  In our view this 
application falls far short of meeting that burden.  The burden  I think 
should be far greater given the unique nature of Dysart Woods." 
 Northrop asked for site-specific data from studies within the 
watershed of Dysart Woods to show without a doubt that mining would not 
affect the water table at the ancient forest.  "These are old trees.Trees do not grow hardier with age, they grow more fragile.  They require 
more water as they grow and are more susceptible to harm from loss of 
water. 

  "The Southwest portion of area #7 goes through and is located upon 
the watershed in which Dysart Woods is located.  Now we know, it is beyond 
dispute that there will be an affect upon the water in the area directly 
above the mine workings within the very watershed in which Dysart Woods 
are located.  There will be a loss of springs without a doubt.  There will 
be a lowering of the water table without a doubt. 

  Northrop continued, "We need site-specific information to 
demonstrate without a doubt there will not be a lowering of the water 
table at Dysart Woods.  That information is not in the permit.  To our 
knowledge that information does not exist, the study has not been 
performed.  The division in our view does not act in accordance of law if 
it issues this permit without first requesting that information be 
gathered to be submitted to and be evaluated by all constituents.  We 
therefore ask that the permit in its present form not be issued." 
 
Ohio Division of Mines and Reclamations Internal Environmental Review Team Final Report findings of June 24, 1998 support the full buffer zone protection  
 The Division of Soil and Water Conservation found that "The soils on the older growth areas are mapped Lowell and Westmoreland. ...The soil layers at these sites appear to be shallower that (sic) the usual amount listed in the soil series.  This may result in soils having the ability to hold less available water than the series in general."  Without holding as much water, Dysart Woods is likely more dependent upon water flowing into the forest from above.  Allowing any mining under or near Dysart Woods, or allowing longwall mining of the watershed would likely decrease the overall water supply, harming Dysart Woods. The Division of Water found, "Wells drilled in the uplands are completed above 1150 feet MSL, which is above the elevation of the local drainage."  This indicates that groundwater upstream of Dysart Woods is likely forming the surface water needed by the ancient trees.  The heavy growth of nettles in Dysart Woods also indicates above normal moisture.  Because the soils cannot hold much moisture, Dysart Woods is likely exceptionally dependent upon such moisture that would be likely be lost if mining occurs. 

 The Division of Soil and Water Conservation found that "There was evidence of seepage (spring flow) coming from an approximate elevation of 1,260 that may supply some additional water to several large trees on a bench below the WkD map unit on sheet 52 in the Belmont Soil Survey (ODMR 6-24-98)"  This shows that it is the ground water that mining would disrupt if it is allowed in any form in the watershed buffer zone (as delineated by Moid Ahmed). 

 The Division of Water found, "These studies indicate that water that might be available for the trees to use would be from infiltration of precipitation at the immediate area or from higher elevations.  All the springs ... are gravity type springs (ground water moving downward that intercepts the hillside)..."  The Division of water reported that Ohio Valley Coal Company's data showed that 90 percent of water wells within 700 feet of a longwall panel edge were impacted.  "Ground water effects in the zone of surface fracturing ... are variable because strata are susceptible to recharge and dewatering as fractures develop."  The ODMR reported that Ohio Valley Coal Co. statistics found that 100 percent of developed springs within 700 feet of a longwall panel edge were impacted, 76 percent with significant impact. 

 The Division of Geological Survey found that Dysart Woods' soils were well drained, moderately permeable, and on steep slopes.  The division found that Dysart Woods was susceptible to erosion and slippage.  Thus, the ancient forest would be prone to slippage and other affects if mining of any type, including room and pillar, were allowed underneath or nearby.  Also, a lowering of the regional water table would very likely harm Dysart Woods because water is so permeable at the surface.  "The root-throw of fallen trees at Dysart Woods proper indicates that most, if not all, trees are relatively shallow-rooted in collubium...it seems possible that sudden movement within colluvium could topple trees that are shallow-rooted in colluvium (ODNR, 6-24-98). 

 The ODNR team furthers the warnings of this appeal that room and pillar mining is just a means to delay the affects until later.  "Length of time for mine subsidence to occur increases with increasing depth of mining and increasing competency of overburden. Also, the type and amount of roof support in addition to pillars of coal left in the mine contribute to subsidence. Most  underground mines in Ohio used wooden timbers as additional roof support. Roof bolting is another type or roof support being used in Ohio mines. With time, following abandonment of an underground mine, these types of additional roof support would eventually rot or deteriorate a lowing subsidence to occur, depending on width of unsupported roof, pillar dimension, and load-bearing capacity of pillars. Because of the complexity of the variables which contribute to mine-related subsidence, no acceptable system exists which is capable of accurately and precisely predicting the exact time or amount of subsidence in a variety of geological settings, especially for mines with an irregular pattern of room and pillar of mining. However longwall mines induce subsidence rapidly, beginning almost immediately after mining begins. Generally, most of the subsidence occurs at the surface within nine months of mining. Residual subsidence may occur up to several years until Smax is achieved (ODNR 6-24-98). 

Ohio Division of Mines and Reclamations does not have adequate information  
 The ODNR admits in numerous occasions that it does not know what the impacts of mining is on forests because of a lack of scientific data.  Page 5, Geological Survey writes, "It is incertain what effect longwall mining has on trees, regardless of age or type of tree and the geologic setting and topography of the site." 

 Given the rarity and importance of Dysart Woods, it is critical that the ODMR protect the full watershed buffer zone given the lack of knowledge by the ODMR.  With the evidence in this appeal showing the affects of room and pillar mining on the surface hydrology, room and pillar mining must be declared unsuitable for mining in the ODMR Lands Unsuitable Petition decision for Dysart Woods. 

 Further, ODMR geologists and decision-makers that were questioned at the ODMR 
headquarters December 28 showed a profound lack of any information or understanding of the impacts room and pillar mining might have on the hydrology or surface. 

The big picture 
 Lastly, the ODMR needs to look at the whole ecology of Dysart Woods.  Maps show extensive coal mining in all directions around Dysart Woods.  The greater matrix around this ancient forest has been mined.  It is critical for the ecological integrity of Dsyart Woods that the watershed buffer zone by protected from all types of mining. 

 Dysart Woods is being studied as the only significant old-growth mixed mesophytic forest left in Ohio.  It can only be studied as a benchmark of how our forests once were if it is left intact.  Mining within the 4,170 acre watershed buffer zone would likely severely impact Dysart Woods, as outlined above.  Top scientists including Ohio University Botany Professor Irwin Ungar, Geography Professor Ted Bernard and Forest Ecology Professor Brian McCarthy have all called on the protection of the watershed buffer zone from all types of mining for Dysart Woods to be protected. 

 Dysart Woods is the last .004 percent of old-growth forest left in Ohio, which was once 95 percent covered with ancient forest.  This should require extra protection to ensure that the ecological integrity of this last significant unglaciated ancient forest left in Ohio be protected for generations to come. 

Relief requested in this appeal  
 The relief that would settle the violations outlined in this appeal is to protect from all types of mining the watershed buffer zone as delineated in the Buckeye Forest Council's Lands Unsuitable Petition deemed complete by the Ohio Division of Mines and Reclamations in the spring of 1998. 
 

Signed December 30, 1998 
 
Chad Kister 
P.O. Box 31 
Athens, Ohio 45701 
chad@chadkister.com 
www.chadkister.com 
 

61 pages of Appendix followed (most of them are at other sections of these web sites) 

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