Appeals court strikes down regulation restricting surface mining in Ky. watershed

bestep@herald-leader.comFebruary 20, 2012 

An appeals court has struck down a rule that state regulators used to restrict surface mining in a Floyd County watershed where some residents fought to block coal companies from stripping the hills.

The regulation had been put in place so the state could impose additional safeguards rather than ban mining altogether, said Tom FitzGerald, head of the Kentucky Resources Council.

The safeguards for Wilson Creek in Floyd County included using extra flood-control measures, returning mined areas to their approximate original contour instead of leaving them flatter and planting trees to reclaim mined areas.

The three-judge panel of the Kentucky Court of Appeals said the regulation made state law more stringent than federal mining rules. That is barred under a separate state law.

The decision, handed down Friday, does not mean coal companies may mine the Wilson Creek area without the restrictions set forth by Energy and Environmental Cabinet Secretary Len Peters. Rather, the Appeals Court panel sent the case back to the cabinet for further consideration.

Residents will ask cabinet officials to keep limits on mining in place, said Bev May, a resident who also is member of Kentuckians for the Commonwealth. May was among those who wanted to bar mining along Wilson Creek.

"We are determined as ever that we're not going to be abused," May said in statement.

Steven Sanders, an attorney with the Appalachian Citizens' Law Center, which represents Wilson Creek residents, said there was no permit in place for a coal company to mine in the area.

The controversy over mining in the Wilson Creek area, where May said about 100 families live, dates back several years. Residents began trying to figure out how to respond after learning in 2006 that Miller Bros. Coal was trying to lease land for a surface mine in the community.

Residents were concerned about the potential effect on the community and environment and about having heavy trucks hauling coal on narrow roads.

May and others filed a petition asking the state to declare 2,000 acres of the Wilson Creek watershed unsuitable for mining. The state denied that request, but Peters placed several limits on mining in the watershed, by Miller Bros. and other companies.

Peters also said companies couldn't use Wilson Creek or Big Fork roads to haul coal.

A circuit judge upheld the restrictions when the coal company sued, but the Court of Appeals overturned that decision in a ruling written by former Supreme Court Chief Justice Joseph Lambert, sitting on the three-member panel as a senior judge.

Laurel Mountain Resources, successor to the bankrupt Miller Bros., argued that Peters first had to declare the Wilson Creek watershed unsuitable for mining before placing restrictions on the area. The appeals judges agreed.

In the Wilson Creek case, the cabinet refused to say an area was unsuitable to mine but then imposed restrictions in line with a finding that the area was in fact not suitable to mine, the court said.

"Either the petition area is unsuitable for all or certain types of surface mining, and consequently subject to the imposition of restrictive conditions, or it is not," the opinion said.

The state may declare an area unsuitable for all mining or for certain types of mining. The provision is available to protect land considered too fragile, historically significant or important to a community to mine, but it is used rarely.

FitzGerald, of the Kentucky Resources Council, said it is difficult to gauge the effect of the appeals court ruling.

There have been relatively few petitions filed in Kentucky during the past 35 years, and only one or two other cases in which the state imposed extra conditions as an alternative to banning mining, FitzGerald said.

With the regulation unavailable, regulators might approve requests to declare areas unsuitable for mining and then impose conditions, allowing mining under the additional protections, FitzGerald said.

Dick Brown, spokesman for the Energy and Environment Cabinet, said officials there were reviewing the decision.

Bill Estep: (606) 678-4655. Twitter: @billestep1

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